It is often asked during early product planning whether a patent application can be kept confidential until a launch or funding round. The instinct to stay quiet is understandable because an 18-month publication can reveal valuable engineering and business choices. Indian law does not allow a blanket opt-out from publication, but it does offer limited, time-sensitive routes to prevent the application from being made public. This article explains those routes, the legal basis, and the practical decisions that applicants need to take.
The default rule: publication at 18 months, early publication on request
Under Section 11A of the Patents Act, an application is ordinarily not open to the public until the expiry of the prescribed period, after which it is published. In practice, this means publication after 18 months from the filing or the earliest priority date. Applicants who want a faster public route may request early publication using Form 9, after which publication typically issues within about a month, subject to statutory exceptions.
Key takeaways at this stage
If confidentiality is important, do not file Form 9 for early publication.
Remember that the 18-month clock runs from the earliest priority date, not just the Indian filing date.
Is there a non-publication request in India?
No general non-publication request exists in Indian law. Unlike the United States non-publication opt-out, Indian law provides only three narrow situations where your application will not be published:
Secrecy directions for defence-related inventions: If secrecy directions under Section 35 are imposed, publication is barred while those directions operate, and publication will occur only when directions are lifted or after the ordinary period, whichever is later. These directions are issued by the Controller or on Central Government notification, and are not a mechanism an applicant can invoke to maintain business confidentiality. They are reviewed periodically.
Abandonment of a provisional application: If a provisional specification is filed and the complete specification is not filed within 12 months, the application is deemed abandoned under Section 9(1). Such an application is not published. This is sometimes used deliberately if an applicant decides to keep the know-how as a trade secret instead of pursuing a patent.
Withdrawal before publication: If the application is withdrawn three months prior to the 18-month mark, the Patent Office must not publish it. In effect, this is a 15-month deadline from the earliest priority date. The withdrawal is made using Form 29. There is no fee for withdrawal. If the application is withdrawn before the First Examination Report issues, up to 90 percent of the examination fee may be refunded under the current rules and practice.
How to withdraw to avoid publication, step by step
Mark the 15-month date from your earliest priority.
File Form 29 well before the 15-month cut-off, ideally with buffer time.
Do not file Form 9 for early publication if confidentiality is your goal.
If a request for examination has been filed, consider the refund consequences and timing.
Practical effect: Withdrawal within 15 months keeps the specification out of the public domain. The application is treated as withdrawn and cannot serve as a basis for claims later. If you still want protection, you must refile afresh with potential prior art consequences.
Secrecy directions, explained briefly
Secrecy directions protect inventions relevant to defence. When imposed, publication is blocked, the application may proceed up to allowance, but the grant and publication are deferred while the directions stand. The Central Government reviews these directions periodically. This route is narrow and driven by national security, not private commercial concerns.
What if the Patent Office publishes a withdrawn application?
A recent order examined this exact scenario. In Dr. Vandana Parvez & Ors v. Assistant Controller of Patents and Designs (Madras High Court, 2024), the Court dealt with an application that had been withdrawn within time but was later wrongfully published and cited as prior art against the applicants’ subsequent filing. The Court held that the withdrawn application should not have been published at all, directed the Patent Office to expunge the publication, and disallowed its citation. The case underscores that timely withdrawal should prevent publication and that a publication made contrary to Section 11A and the Rules cannot be used to prejudice the applicant.
Applicant lesson: If you withdrew in time and still see your application published or cited, you have strong grounds to seek corrective orders.
Early publication and expedited examination, a caution
If Form 9 is filed, the Office ordinarily publishes within a short period. Once publication has occurred, confidentiality is irrevocably lost. Expedited examination typically requires that the application be published or that Form 9 is filed. Plan your strategy so that an inadvertent Form 9 does not defeat your confidentiality objective.
PCT filing and confidentiality, a quick comparison
If you file a PCT application, WIPO will internationally publish it after 18 months from the priority date unless it is withdrawn before international publication. After publication on PATENTSCOPE, the content is public worldwide. If confidentiality is paramount, ensure timely withdrawal across all tracks, not just in India.
A practical decision framework for applicants
Use withdrawal to avoid publication if
you need more time to validate commercial viability, and
you prefer to keep the invention as a trade secret, or
your funding or regulatory path no longer supports patenting at this stage.
Do not rely on withdrawal if
you have already filed Form 9 and publication has issued,
a corresponding PCT filing is on track for international publication, or
you require a priority right from the Indian filing.
If you are uncertain about publication
file a provisional to secure a priority date,
assess within 6 to 9 months whether to convert or withdraw before the 15-month cut-off, and
keep close watch over docketing so that no early-publication or expedited-examination request is triggered by mistake.
