Section 42 of the Patents Act, 1970
Savings respecting disclosure to Government
Section 42 preserves the Controller's power to share an application with the Government and the Government's power to use that information for defence.
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.
Nothing here replaces the statute. The official wording of the provision, together with any Gazette notification that applies to it, governs. This page only explains that material in ordinary language.
What this section says, in plain language
Chapter VII imposes tight secrecy around defence-relevant applications, and the Act elsewhere keeps unpublished applications confidential until publication under section 11A. Taken literally, those duties would block the very step the Chapter depends on. The Controller could not send a suspect application to the Ministry for assessment, and officials could not act on what they learned. Section 42 removes that obstacle.
It does so by way of a saving. Nothing in this Chapter prevents the Controller from disclosing information about an application or a specification to the Central Government for the purpose of the application being dealt with under the Act. Nor does anything in the Chapter prevent the Central Government, or a person authorised by it, from disclosing or using such information for defence purposes.
The saving is purpose-bound and should be read narrowly. It permits disclosure so that the application can be dealt with under the Act, and use for defence purposes. It is not a general licence to publish the invention, to hand it to a commercial competitor, or to treat the technical content as public property. Anything outside those purposes has to find its own legal basis.
Nor does the section take away the applicant's rights. If the Government actually uses the invention, that is governed by the government use provisions in Chapter XVII. Section 100 sets out the framework for use by or on behalf of the Government, and section 37 makes those provisions applicable while secrecy directions are in force, so that compensation is dealt with even though no patent has yet been granted.
Section 42 should be read together with section 30. Section 42 protects the flow of information to the Government; section 30 makes sure that a communication of the invention to the Government does not destroy novelty. Together they let an inventor engage with the State without losing the ability to patent, and let the State make the assessment it needs to make.
Why this section matters
Applicants whose applications are referred to the Government for defence assessment, and government departments that receive and act on that information.
It operates whenever the Controller refers an application to the Central Government under Chapter VII and while that information is being used for defence purposes.
It creates a lawful channel for disclosure to the Government and for the Government's use of the information for defence purposes.
The assessment machinery in Chapter VII could not function, and applicants might wrongly treat any official onward use of their disclosure as a breach of confidence.
How it works in practice
How the file reaches the Ministry lawfully
When the Controller forms the view that Ashwa Aerospace Pvt Ltd's radar absorbing composite may be relevant for defence purposes, the file has to be seen by people outside the Patent Office before any decision can be taken. Section 42 is what allows the Controller to send the specification and the drawings to the Central Government so that the application can be dealt with under the Act. A technical cell within the relevant establishment studies the formulation, tests samples supplied for evaluation, and reports back that publication would be prejudicial to the defence of India. Ashwa's counsel confirms to the board that this internal circulation is authorised by the Act and is not a breach of the confidentiality that otherwise attaches to an unpublished application. Counsel also notes two points: under section 30 the communication does not affect novelty, and if the establishment goes on to use the composite, the terms and compensation fall under the government use provisions.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The Controller may disclose information about an application or specification to the Central Government for the purpose of dealing with the application.
- The Central Government, and persons it authorises, may disclose or use that information for defence purposes.
- The saving is limited to those purposes and is not a general permission to publish the invention.
- Actual use of the invention by the Government is governed by the government use provisions in Chapter XVII.
- Read with section 30, the applicant's novelty is not damaged by the communication.
Common mistakes and misunderstandings
- Reading the section as removing confidentiality generally. It authorises specific disclosures for specific purposes, not open publication of the application.
- Assuming that lawful disclosure means free use. If the Government uses the invention, the government use provisions deal with terms and compensation.
- Confusing section 42 with section 30. One protects the flow of information to the Government; the other protects the novelty of the invention.
Connected provisions
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
Fees are prescribed in the First Schedule to the Patents Rules. Because the Schedule is revised from time to time, and charges different amounts to different categories of applicant and for physical as against electronic filing, this page describes the fee without stating a figure. How Indian patent fees work.
Related judgments
Court decisions shape how this provision is applied, but a summary is useful only if it is right. Every case note on this site is read by a legal reviewer before it goes live, and none has been completed for this provision so far. This section will fill in as those reviews finish. How case notes are prepared.
Questions people ask about Section 42
Does section 42 mean my unpublished application can be shared freely?
No. The saving is tied to purpose. It permits the Controller to disclose information about an application or specification to the Central Government so that the application can be dealt with under the Act, and it permits the Government and persons it authorises to disclose or use that information for defence purposes. Sharing outside those purposes is not authorised by this section. The general confidentiality of an unpublished application, and the restrictions imposed by secrecy directions, otherwise continue to apply.
If a government body uses my invention after seeing the file, am I compensated?
Use of an invention by or on behalf of the Government is dealt with by the government use provisions in Chapter XVII, and section 100 sets out the framework, including terms and payment. Section 37 makes that machinery applicable while secrecy directions are in force, so an applicant is not left without a remedy merely because no patent has been granted. Section 42 itself is only about lawful disclosure and use of information; it is not the provision that fixes compensation.
How does section 42 relate to secrecy directions under section 35?
They work together. Section 35 restricts publication and communication of a defence-relevant invention, while section 42 makes sure those restrictions do not prevent the information reaching the Central Government so the application can be dealt with, or being used by the Government for defence purposes. Without the saving in section 42, the Chapter would block the assessment it depends on. So the two are not in conflict: one closes the invention to the public, and the other keeps a defined channel open to the State.
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