Section 38 of the Patents Act, 1970
Revocation of secrecy directions and extension of time
Section 38 lets the Controller extend time limits that were missed because secrecy directions were in force, once those directions are revoked.
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
Secrecy directions stop publication and grant, but they do not stop the calendar. While the directions run, deadlines under the Act and the Rules continue to fall due in the background. Without a remedy, an applicant could comply fully with a government restriction and still lose the application for a delay the restriction itself caused.
Section 38 supplies that remedy. When directions given under section 35 are revoked, the Controller may, subject to the conditions set out in the Rules, extend the time for doing anything required by the Act or the Rules in connection with the application. Importantly, the power can be used even where the time in question has already expired. That is what makes the section a genuine rescue and not merely an indulgence granted in advance.
This is a specific power tied to the secrecy regime, and it should not be confused with the general power in Rule 138 to extend time or condone delay. The two operate on different footings. Section 38 exists because the delay is attributable to a restriction imposed in the national interest, not to any default by the applicant.
The practical work is in the preparation. Before asking for an extension, list every act that fell due while the directions were in force, with the original due date for each and the date of revocation. Explain in each case why the direction prevented compliance. A request that simply asks for more time, without that chronology, is much harder for the Controller to act on.
Move quickly after revocation. The application will usually already have been found in order for grant under section 37, so the remaining work is to regularise the file and reach grant. The longer the gap between revocation and the request, the weaker the connection between the delay and the secrecy directions becomes.
Why this section matters
Applicants whose Indian applications were subject to secrecy directions, and their agents, once those directions have been revoked.
It becomes relevant immediately on revocation of the directions, and is used to regularise the file before grant.
It creates a power in the Controller to extend time limits connected with the application, including limits that have already expired.
Acts that fell due during the secrecy period stay unperformed, and the application can be treated as defective or abandoned even though the applicant did nothing wrong.
How it works in practice
Regularising a file after the directions are lifted
When the Controller revokes the secrecy directions on Ashwa Aerospace Pvt Ltd's radar absorbing composite application, the company's agent prepares a single consolidated request under section 38. It sets out a table with three columns: the act required, the date it originally fell due, and the reason the directions prevented it. The table covers a document filing whose period expired eleven months earlier, and two procedural steps connected with the application. The request attaches the original directions, every review communication received under section 36, and the revocation order with its date. The Controller, satisfied that the delays flowed from the directions and not from any default by Ashwa, extends the time for the listed acts subject to the conditions in the Rules. The company completes them within the extended period. Because the application had already been found in order for grant under section 37, the patent issues shortly afterwards.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The power arises on revocation of directions given under section 35.
- The Controller may extend time for anything required by the Act or the Rules in connection with the application.
- Extensions can be granted even where the original period has already expired.
- The power is subject to conditions in the Rules, which should be checked in their current form.
- It is separate from the general extension and condonation power in Rule 138.
- A clear chronology of missed acts and their original due dates is what makes the request workable.
Common mistakes and misunderstandings
- Assuming deadlines were automatically suspended during the secrecy period. They were not, which is why this section exists.
- Filing a vague request. Without a list of the specific acts, their due dates and the revocation date, the Controller has nothing concrete to extend.
- Delaying the request after revocation. The link between the secrecy directions and the missed act is easiest to show soon after the directions are lifted.
Connected provisions
You will find the related rules grouped below rather than inside the explanation. The separation is deliberate. The Act and the Rules are distinct legal instruments, and mixing them can lead a reader to attribute a procedural requirement to the statute itself.
Forms, deadlines and fees
- The power to extend becomes available once the secrecy directions are revoked, and it can cover periods that have already expired.
- The conditions and limits attached to the extension are set by the Rules and must be checked against the current text.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Any official fee connected with this provision is fixed by the First Schedule to the Patents Rules, not by the provision itself. The amount depends on who the applicant is and on whether the filing is made online or on paper, so no figures are reproduced here. How Indian patent fees work.
Related judgments
You will not find case summaries under this heading today. Each one must pass a legal review before it appears, and that work has not been completed for this provision. If you are researching decided cases, use a law report or a court database in the meantime. How case notes are prepared.
Questions people ask about Section 38
Is the extension under section 38 automatic once directions are revoked?
No. The section gives the Controller a power, not the applicant an entitlement, and the power is exercised subject to the conditions in the Rules. The applicant has to ask, and has to show what acts fell due during the period the directions were in force and why they could not be done. A request supported by the directions themselves, the review correspondence and the revocation order, with a dated list of the affected acts, is the practical way to obtain it.
How is this different from Rule 138?
Rule 138 is a general power that allows the Controller to extend time or condone delay in specified circumstances, and it comes with its own limits and conditions. Section 38 is narrower and specific to the secrecy regime. It exists because the delay is caused by directions imposed under section 35 in the national interest, so the applicant should not bear the consequences. Where both might be relevant, the request should identify which power is being invoked and why.
Can section 38 extend the term of the patent itself?
No. The section is about time limits for doing acts in connection with the application, such as filing documents or completing procedural steps. The term of a patent is governed by section 53 and runs from the date of filing, and the date of the patent is fixed by section 45 as the filing date. Nothing in section 38 changes those. Its purpose is to preserve the application, not to compensate the applicant for the time lost while directions were in force.
Secrecy directions lifted on your application?
MYCrave Consultancy prepares the section 38 extension request, regularises the file and takes the application through to grant.
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