Section 37 of the Patents Act, 1970
Consequences of secrecy directions
Section 37 sets out what happens to an application while secrecy directions run, including that the grant order is held back.
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
A secrecy direction does not freeze the file. Section 37 makes clear that the application continues to be processed in the normal way. Examination happens, objections are raised, the applicant replies, hearings take place if needed, and the application can be found to be in order for grant. What does not happen is the final step. While directions are in force the Controller does not pass the order granting the patent, and the application and specification are not published.
The applicant is told when the application has been found in order for grant. That notice is valuable. It means the substantive work is finished and the file is simply waiting for the defence position to change. When the directions are revoked, grant can follow without repeating the examination process.
Secrecy is not confiscation. While the directions are in force the Central Government may use the invention as though a patent had been granted for it, and the government use provisions in Chapter XVII, including section 100, govern the terms on which that use happens and the payment that follows. An applicant whose invention is used in this period is therefore not left without a remedy, even though no patent has issued.
The Act also softens the ordinary consequences of the delay. Section 38 allows the Controller, once the directions are revoked, to extend the time for doing anything required under the Act or the Rules in connection with the application, including time that has already expired. The fee and renewal position for the period of secrecy is dealt with in the statutory scheme rather than left to the applicant, and the current text and Rules should be checked for exactly how it operates in a given case.
One structural point is worth noting. Orders made under this Chapter, including those giving effect to secrecy directions, are given finality by section 41, so the ordinary appeal route to the High Court under section 117A is not available for them. The applicant's practical remedies lie in the review machinery of section 36 and the revocation and extension machinery of section 38.
Why this section matters
Applicants whose Indian applications are under secrecy directions, and anyone assessing the commercial value of such an application, including investors and acquirers.
It applies for the whole period the directions are in force, from the moment they are issued until they are revoked.
It creates a suspended state: full prosecution up to the point of grant, no grant order, no publication, and a right for the Central Government to use the invention on statutory terms.
An applicant may assume the file is dead, stop responding to examination correspondence, and lose the application for reasons that have nothing to do with the secrecy direction.
How it works in practice
In order for grant, but no patent yet
Ashwa Aerospace Pvt Ltd receives its first examination report on the radar absorbing composite while secrecy directions are in force. It files a reply, attends a hearing and amends two claims. Eighteen months later the Controller notifies the company that the application has been found to be in order for grant, but no patent is issued and nothing is published. In the meantime a Central Government establishment procures panels made to the specification for a trial programme. Because section 37 allows the Government to use the invention as if a patent had been granted, the terms and compensation for that use are dealt with under the government use provisions rather than by negotiation in the open market. Ashwa's finance team records the application as a pending asset with a note that examination is complete, and diaries every deadline that falls due so that extensions can be sought under section 38 when the directions are eventually lifted.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The application is processed normally up to the point where it is found in order for grant.
- The grant order is not passed and the application is not published while directions are in force.
- The applicant is notified when the application has been found in order for grant.
- The Central Government may use the invention as if a patent had been granted, under the government use provisions.
- Section 38 allows time limits missed during the period to be extended once the directions are revoked.
- Orders under this Chapter are final under section 41, so the usual appeal route does not apply to them.
Common mistakes and misunderstandings
- Treating the file as suspended and ignoring examination correspondence. Prosecution continues, and missed replies still cause problems.
- Assuming government use during secrecy is free of charge. The government use provisions in Chapter XVII deal with terms and payment.
- Expecting to appeal a secrecy-related order to the High Court. Section 41 gives those orders finality, and the review machinery in section 36 is the practical route.
Connected provisions
- ActSection 35Secrecy directions relating to inventions relevant for defence purposes
- ActSection 36Secrecy directions to be periodically reviewed
- ActSection 38Revocation of secrecy directions and extension of time
- ActSection 41Finality of orders of Controller and Central Government
- ActSection 100Power of Central Government to use inventions for purposes of Government
- ActSection 11APublication of applications
Indian patent law works in two layers. The Act carries the substance and the Rules carry the machinery. Because the layers are amended by different processes and at different times, they are presented in separate blocks instead of being merged into one description.
Forms, deadlines and fees
- No grant order is passed and no publication takes place for as long as the secrecy directions remain in force.
- Time limits that expire during this period can be extended by the Controller under section 38 after the directions are revoked.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
This site does not carry a fee table. The First Schedule to the Patents Rules is the source, the rates vary with the applicant's category and with the mode of filing, and a figure quoted second-hand goes out of date quietly. How Indian patent fees work.
Related judgments
Case law is added slowly and deliberately. A summary is drafted, checked against the reported judgment and then reviewed before publication, because a wrong case note can mislead a reader badly. No summary for this provision has reached publication yet. How case notes are prepared.
Questions people ask about Section 37
Can I sue an infringer while my application is under secrecy directions?
No patent has been granted, and rights to sue for infringement arise from a granted patent under section 48. During the period of secrecy the application is held at the point of grant, so infringement proceedings are not available. If the Central Government is the user, the government use provisions in Chapter XVII apply and provide for terms and compensation. For private parties, the practical position is that enforcement waits until the directions are revoked and the patent is granted.
Does the twenty-year term start running during the secrecy period?
The term of a patent runs from the date of filing of the application under section 53, and the date of the patent is the filing date under section 45. Delay caused by secrecy directions does not, by itself, create a later starting point for the term. That is one reason section 38 matters, because it allows the Controller to extend time limits missed during the period so the applicant is not additionally penalised. The exact fee and renewal consequences should be checked against the current Rules.
What should I do differently while directions are in force?
Keep prosecuting the application properly, because examination continues. Keep the address for service current so that no communication is missed. Maintain a dated log of every deadline, communication and review. Take advice before any disclosure of the invention, including in fundraising or due diligence, because the restriction is on publication and communication. And use section 36 actively, filing a request for reconsideration when there is genuine new material showing the technology is already public.
Your application is in order for grant but held back?
MYCrave Consultancy manages applications under secrecy directions, protects your deadlines and moves the file to grant once they are lifted.
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