In order to obtain a patent in India, the invention should not be disclosed in the public domain prior to filing of a patent application.
Few exceptions are provided in the Indian Patent Act under which the patent application can be filed despite public disclosure, and such public disclosure will not be considered to have been anticipated.
- Anticipation by previous publication (Sec. 29)
- Anticipation by previous communication to the government (Sec. 30)
- Anticipation by public display (Sec. 31)
- Anticipation by public working (Sec. 32)
- Anticipation by use and publication after provisional specification (Sec. 33)
Anticipation by previous publication (Sec 29)
A complete specification filed shall not be deemed to have been anticipated if the invention has been published prior to filing of the patent application, if the applicant or the patentee proves that the matter published was obtained from him or any person from whom he derives title without his consent or the consent of any such person.
Anticipation by previous communication to the government (Sec 30)
A complete specification filed shall not be deemed to have been anticipated if the invention has been communicated to the government or any person authorised by the government for the purpose of investigation of the invention.
Anticipation by public display (Sec 31)
A complete specification shall not be deemed to have been anticipated if:
- the invention has been displayed in an exhibition to which the provisions of the instant section has been extended by the Central Government; or
- the invention is described in a publication in consequence of display of the invention in such an exhibition; or
- the invention has been used by any person without the consent of the true and first inventor or a person deriving title from him after it has been displayed in such an exhibition; or
- disclosing the invention before a learned society or publishing the invention in the transaction of such society;
- provided the application is filed within 12 months from aforementioned public display.
Anticipation by public working (sec 32)
A complete specification shall not be deemed to have been anticipated if the invention has been filed within 12 months after the invention has been publicly worked for the purpose of reasonable trial considering the nature of the invention.
Anticipation by use and publication after provisional specification (sec 33)
A complete specification shall not be deemed to have been anticipated if the invention has been used and published after filing a provisional application.
In conclusion, ideally one should file a patent application before publicly disclosing the invention. However, if a public disclosure is made before filing a patent application, then one can still contemplate patent application filing in light of the provisions discussed above.
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