This document discusses post-dating of patent applications under Sections 9 and 17 of the Indian Patents Act. Post-dating allows an applicant to shift the filing date of a patent application to a later date. Key points covered include that post-dating can be requested before grant of the patent for up to 6 months from the original filing date. The fee for post-dating is 800 INR for start-ups. Post-dating may help extend deadlines for filing complete specifications or PCT applications while maintaining the priority date, but it risks destroying novelty if the invention was publicly disclosed between the original and post-dated filing dates.

1. Term #17
Post-Dating (Patent)
U/S 9 & 17
Key Terms of Indian Patents Act
Ms Bindu Sharma, Founder & CEOSpeaker
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2. Post-Dating
• Shifting date of filing patent
application to the later date.
• Other than India, few other
countries have Post-Dating
provisions.

3. Section 9 [Provisional and
Complete specifications]
Section 17 [Power of Controller
to make orders respecting
dating of application]

4. Section-9 (4), [Provisional
and complete specification]
• Applicant can request the Controller to
post-date the application after filing &
before the grant of the patent.
• The date of post-date shall be
specified, and the Controller may
direct that the application shall be
post-dated.
• Such post date shall not be requested
or made for a date later than 6 months
from the date on which it was actually
made or would, be deemed to have
been made.

5. Section-9 (4), [Provisional
and complete specification]
• Applicant has to file complete
specifications within 12 month of
filing provisional application.
• On the request of applicant, the
Controller may cancel the
provisional specification and post-
date the application to the date of
filing of the complete
specification.

6. Illustration
Date of filing Provisional application: 5th June 2009
Date of filing Complete application: 15th October 2009
By postdating: Priority date could be shifted to 15th October 2009
Postdating can’t be requested beyond 6 months

7. Postdating of the patent can be done only to the
date of filing of the complete specifications” Where a
complete specification has been filed in pursuance of
an application for a patent accompanied by a
provisional specification or by a specification treated
by virtue of a direction under sub-section (3) as a
provisional specification
Standipack Pvt. Ltd. Vs. Oswal
Trading Co. Ltd

8. Standipack Pvt. Ltd. Vs. Oswal Trading Co. Ltd
• The Controller may, if the applicant so requests at
any time before grant of patent, can cancel the
provisional specification and post-date the
application to the date of filing of the complete
specification.
• The interpretation of Sec 9(4) is that when the
inventor has not provided sufficient disclosure or has
provided incomplete information in the provisional
specification, he can file a complete specification
within 12 months of filing the provisional
specification and may request to cancel the such
provisional specification.
• In this case, the date of application will be the date
on which such complete specification is filed.

9. • There is no specific form for post-
dating the application and hence the
request for post-dating can be filed
through Form-30 to post-date the
application.
• Fee for post-dating is
800 INR for natural person/start up,
2000 INR for a small entity and
4000 INR for others except small entity
for e-filing and ten per cent additional
respectively in case of filing by physical
mode.

10. U/S 17 [Power of Controller to make
orders respecting dating of application]
• The application for patent may be post-
dated to a date not later than six
months from the date of application on
a request made by the applicant at any
time before the grant of patent along
with the prescribed fee as given in first
schedule.
• This provision will not apply if the
application is deemed to be abandoned.

11. Illustration
Date of filing application: 5th June 2009
Postdating can’t be requested beyond 5th December 2009 (6 months
from date of filing)

12. Reasons for post dating
application
• Failure to file complete application,
within 12 months from the date of
filing provisional application.
• If the information to file complete
application is not ready or there is
some financial crisis, the applicant can
post-date the application to the
maximum time of 6 months and this
helps him to extend his deadline to file
complete application.

13. Reasons for post
dating application
• Post dating as an option can be availed
to post-date the complete application
also if the applicant claims priority date
by filing complete application.
• If the applicant has missed the deadline
to file PCT application, which is, 12
months from the date of priority, post
dating the Indian patent application
might be helpful to get extra time of 6
months to file PCT application.

14. Risk with Post-dating
• After filing patent application, if the
applicant has disclosed the invention in
public, followed by post-dating of the
application, this might destroy novelty
of the invention. Therefore, the
applicant shall opt for post-dating the
application after calculating the risk.

15. Illustration
Date of priority: 15th June 2019
Publication: 25th August 2019
Post date (6 months): 15th Dec 2019
Priority date: 15th Dec 2019
Novelty is lost

16. Question
The fee payable by a start-up
company for post dating the patent
application is:
a. 800 INR
b. 1000 INR
c. 2000 INR
d. 4000 INR

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