Prior Use Patents in India: What Is It and What Are Its Implications for Later Patent Applications

Prior use of patents refers to the commercial use of an invention by a different undertaking than the one who would later file a patent application for the same invention. The rules applying in these cases may slightly differ in different countries, yet the basic principles are that if the prior user can prove he has been making an undisclosed use of the invention prior to the filing of the patent application, the prior user may carry on his commercial activities with a non-exclusive right to use the invention. If such prior use entailed the disclosure of what is claimed in the patent application, the novelty would be destroyed and therefore the patent could be revoked.

Nevertheless, in India even if what is claimed within the patent specifications was priorly used secretly, the patent may still be revoked under Section 64(1)(l) of the Indian Patents Act, 1970. Also, Section 34 of the Indian Patents act does protect patent applications stating a patent shall not be revoked or invalidated by reason only of any circumstances which, by virtue of section 29 or section 30 or section 31 or section 32, do not constitute an anticipation of the invention claimed in the specification. Therefore, any invention that has been disclosed before a learned society or before the public authority or government personnel while on duty or any public working necessary to test the efficacy of the invention, any prior publication by the inventors is not considered as anticipation, provided the patent application concerning these inventions is filed within 12-months from the first public disclosure.