Section 35 of the Patents Act, 1970
Secrecy directions relating to inventions relevant for defence purposes
Section 35 lets the Controller and the Central Government keep a defence-relevant patent application secret and stop it being published or shared.
Official legal text
The verbatim statutory text of this provision is reproduced from the official source and checked by our legal reviewer before it is published here. Until that check is complete for this page, read the exact wording directly from the official source linked below — it is the only version that governs.
Read this as a plain-language summary. If it and the official text, or a relevant Gazette notification, say different things, the official text and the notification are what count.
What this section says, in plain language
Most patent applications in India are published eighteen months after the priority date under section 11A, and the file then becomes open to inspection. That system works well for ordinary technology. It works badly for inventions with defence significance, where publishing a full enabling description could hand an advantage to an adversary. Chapter VII of the Act exists to handle that situation, and section 35 is its starting point.
The machinery works in two directions. If the Controller, while dealing with an application, considers that the invention is one relevant for defence purposes, he may give directions prohibiting or restricting the publication of information about the invention or its communication to any person. He must then inform the Central Government, which considers whether publication of the invention would be prejudicial to the defence of India. The Central Government can also move first, notifying the Controller that a particular invention is relevant for defence purposes.
Once directions are in force the consequences are immediate and practical. The application is not published under section 11A. The file is not opened to public inspection. The applicant must not communicate information about the invention except as the directions permit. And the applicant cannot file abroad, because section 39 makes the absence of subsisting secrecy directions a condition of foreign filing.
Typical subject matter includes guidance and targeting systems, armour and stealth materials, secure communications and cryptographic hardware, unmanned systems and counter-drone technology, and specialised sensors and optics. There is no published list, and the assessment is made by the Government rather than by the applicant, so a civilian-looking invention with a clear defence application can be caught.
Directions are not meant to be permanent. Section 36 requires periodic review, section 38 allows revocation and the extension of time limits that expired meanwhile, and section 37 sets out what happens to the application while the directions run. Breaking the directions carries serious consequences under section 40 and section 118, so an applicant who receives them should treat every disclosure decision as a legal question rather than a commercial one.
Why this section matters
Applicants working on defence, aerospace, security, cryptography and dual-use technology, including private companies, startups, research laboratories and individual inventors.
It can arise at any point after filing while the application is being processed, and most often before the eighteen-month publication would otherwise happen.
It creates a power in the Controller and the Central Government to prohibit or restrict publication and communication of an invention relevant for defence purposes.
Communicating the invention or filing abroad in breach of the directions can lead to the Indian application being deemed abandoned, the patent being revoked, and criminal liability under section 118.
How it works in practice
A composite material that attracts secrecy directions
Ashwa Aerospace Pvt Ltd of Nagpur files a complete specification for a lightweight composite panel that strongly absorbs radar frequencies. The company developed it for civilian antenna shielding, but the Controller, on examining the application, considers the invention relevant for defence purposes and issues directions restricting publication and communication. The Central Government is informed and concludes that publication would be prejudicial to the defence of India. The application is not published at the eighteen-month stage, and the file is not opened to inspection. The company's plan to file in the United States and South Korea has to stop, because section 39 does not permit foreign filing while secrecy directions subsist. Ashwa's investors ask why no publication number exists. The company can tell them that an application is on file and is subject to directions under Chapter VII, but it cannot circulate the technical description, and it records every communication it makes from that point on.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The Controller may issue directions where an invention appears relevant for defence purposes, and must inform the Central Government.
- The Central Government decides whether publication would be prejudicial to the defence of India, and can also initiate the process itself.
- While directions are in force there is no publication under section 11A and no public inspection of the file.
- Foreign filing is blocked, because section 39 requires that no secrecy direction be subsisting.
- Directions are reviewed under section 36 and can be revoked under section 38, with time limits extended afterwards.
- Breach exposes the applicant to abandonment and revocation under section 40 and to prosecution under section 118.
Common mistakes and misunderstandings
- Assuming only defence contractors are affected. Directions turn on the nature of the invention, not the business of the applicant, and dual-use civilian technology is regularly caught.
- Continuing with foreign filings while directions are in force. That is a contravention of section 39 with consequences under section 40 and section 118.
- Treating the directions as an informal request. They are statutory directions, and orders made under this Chapter are given finality by section 41.
Connected provisions
- ActSection 36Secrecy directions to be periodically reviewed
- ActSection 37Consequences of secrecy directions
- ActSection 38Revocation of secrecy directions and extension of time
- ActSection 39Residents not to apply for patents outside India without prior permission
- ActSection 40Liability for contravention of section 35 or section 39
- ActSection 118Contravention of secrecy provisions relating to certain inventions
A section of the Act states what the law requires. The detail of complying with it, including forms, periods and office procedure, sits in the Patents Rules, 2003. The Rules are a separate instrument and change far more often, so they are shown alongside rather than folded into the section.
Forms, deadlines and fees
- Publication under section 11A is held back for as long as the directions remain in force.
- No fixed end date applies; the directions continue until the Central Government and the Controller lift them under section 36 or section 38.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Where a fee is payable under this provision, the figure comes from the First Schedule. Categories of applicant are charged at different rates, and electronic filing is treated differently from paper filing, so an accurate number can only come from the Schedule in force on the day you file. How Indian patent fees work.
Related judgments
No judgment summaries appear here yet. Our process requires a legal review of each case note before publication, covering the citation, the court and the point actually decided. Until a note for this provision has passed that check, the section stays empty rather than carrying unverified material. How case notes are prepared.
Questions people ask about Section 35
How will I know that secrecy directions have been issued on my application?
The directions are communicated by the Patent Office to the applicant or the authorised agent at the address for service on record. Practical warning signs include an application that does not appear in the Official Journal at the expected eighteen-month stage and a file that is not open to inspection. Because the directions carry criminal consequences if breached, keeping the address for service current is important. If you work in a defence-adjacent field, treat non-publication as a matter to be checked rather than a delay to be ignored.
Can I still license or sell the technology while directions are in force?
Any dealing that involves communicating information about the invention has to be assessed against the terms of the directions, because the restriction is on publication and communication. That covers technical data rooms, due diligence packs and demonstrations. Ownership itself is not extinguished, and the Central Government may use the invention on the terms in section 100 with compensation. Because breach carries penal consequences under section 118, decisions about disclosure during this period should be taken with professional advice and recorded in writing.
Does a secrecy direction mean my patent will never be granted?
No. Section 37 provides that the application is processed up to the point where it is found in order for grant, but the grant order is held back while directions are in force. Section 36 requires periodic reconsideration, and when the Central Government concludes that publication would no longer be prejudicial to the defence of India, the directions are revoked. Section 38 then allows the Controller to extend time limits that expired during the period, so the applicant is not penalised for the delay.
What if I invented something with obvious defence value but have not filed yet?
The general position is that an Indian resident must file in India first, or obtain the Controller's written permission before filing abroad, under section 39. That sequence matters even more for defence-relevant subject matter, because the Chapter VII machinery only operates on an Indian application. Filing abroad first in this field is a serious step with consequences under section 40 and section 118. Plan the Indian filing, and any foreign filing strategy, before the technology is disclosed to anyone.
Working on defence or dual-use technology?
MYCrave Consultancy helps you file correctly, respond to secrecy directions and keep your foreign filing plans lawful under Chapter VII.
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