Sections 37 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Once secrecy directions under section 35 are in force, the application is frozen at a particular stage. Section 37 sets out what happens during that time: the Controller cannot refuse the application, no appeal lies, the application may proceed only up to the stage of grant, no patent is granted, and the Government may owe the applicant a payment for hardship. Section 38 then lets the Controller extend any time limit once the directions are revoked. For an applicant whose invention is caught, a legal consultation can help plan around these effects.
While directions are in force, the Controller cannot refuse to grant the application and no appeal lies from his orders on it. It may proceed up to the stage of grant, but is not published and no patent is granted (37(1)). If the specification is found in order for grant during that time, Government use is treated as if a patent had been granted, and the Central Government may pay a solatium for hardship (37(2)). No renewal fee is payable for the period (37(3)). When directions are revoked, the Controller may extend time for any step, even one already expired (section 38).
Section 37(1): what stops while directions are in force
"So long as any directions under section 35 are in force in respect of an application— (a) the Controller shall not pass an order refusing to grant the same; and (b) notwithstanding anything contained in this Act, no appeal shall lie from any order of the Controller passed in respect thereof:"
- (a) The Controller "shall not pass an order refusing to grant" the application. The words "to grant" replaced "to accept" in 2005.
- (b) "no appeal shall lie from any order of the Controller passed in respect thereof". This applies "notwithstanding anything contained in this Act".
The proviso
"Provided that the application may, subject to the directions, proceed up to the stage of grant of the patent, but the application and the specification found to be in order for grant of the patent shall not be published, and no patent shall be granted in pursuance of that application."
This was substituted in 2005. It says:
- The application "may, subject to the directions, proceed up to the stage of grant";
- when the application and specification are "found to be in order for grant", they "shall not be published"; and
- "no patent shall be granted" in pursuance of the application.
So the process can run to the point where the application is in order for grant, but then stops. Compare section 11A(3)(a) and (4), which also keep the application from publication while a direction is in force; see our article on section 11A.
Drafting note. Section 37(3) speaks of a patent "granted in pursuance of an application in respect of which directions have been given under section 35". Read with the proviso, which bars grant during the directions, this must refer to a patent granted after the directions have been revoked. The text does not say so in terms, and we flag it rather than resolve it.
Section 37(2): Government use and solatium
"Where a complete specification filed in pursuance of an application for a patent for an invention in respect of which directions have been given under section 35 is found to be in order for grant of the patent during the continuance in force of the directions, then— (a) if, during the continuance in force of the directions, any use of the invention is made by or on behalf of, or to the order of the Government, the provisions of sections 100, 101 and 103 shall apply in relation to that use as if the patent had been granted for the invention; and (b) if it appears to the Central Government that the applicant for the patent has suffered hardship by reason of the continuance in force of the directions, the Central Government may make to him such payment (if any) by way of solatium as appears to the Central Government to be reasonable having regard to the novelty and utility of the invention and the purpose for which it is designed, and to any other relevant circumstances."
The words "is found to be in order for grant of the patent" replaced earlier wording in 2005.
| Limb | Condition | Effect |
|---|---|---|
| (a) Government use | The specification is found in order for grant while directions are in force, and the Government uses the invention (by it, on its behalf or to its order) | Sections 100, 101 and 103 apply "as if the patent had been granted" |
| (b) Solatium | It appears to the Central Government that the applicant suffered hardship from the directions | The Central Government "may" pay "such payment (if any) by way of solatium as appears ... reasonable", having regard to novelty, utility, purpose and other circumstances |
Sections 100 to 102 on Government use have their own post on our site, government use of patents, and section 103 (reference of disputes to the High Court) is covered later in this series. "Solatium" is a payment of compensation for hardship; the Act leaves the amount to the Central Government's view of what is reasonable and does not give a formula. The payment is discretionary: "may" and "(if any)".
Example. Kaveri Optics, a fictional company, has a complete specification for a night-vision component found in order for grant while secrecy directions are in force. An agency uses the component for its own purposes. Under section 37(2)(a), the provisions on Government use apply as if a patent had been granted. Separately, the company shows that it lost commercial opportunities during the years of secrecy. The Central Government may, on the text of 37(2)(b), make a solatium payment that it considers reasonable, having regard to the novelty and utility of the invention and the purpose for which it was designed; it is not bound to make any payment.
Section 37(3): no renewal fee during secrecy
"Where a patent is granted in pursuance of an application in respect of which directions have been given under section 35, no renewal fee shall be payable in respect of any period during which those directions were in force."
If a patent is granted later, no renewal fee is due for the period the directions were in force. The Act does not give renewal fee amounts here; renewal is covered in section 53 and in the Rules. See our post on the term of a patent and renewal fees.
Section 38: revocation and extension of time
"When any direction given under section 35 is revoked by the Controller, then, notwithstanding any provision of this Act specifying the time within which any step should be taken or any act done in connection with an application for the patent, the Controller may, subject to such conditions, if any, as he thinks fit to impose, extend the time for doing anything required or authorised to be done by or under this Act in connection with the application, whether or not that time has previously expired."
Key points:
- Trigger: a direction under section 35 "is revoked by the Controller" (see sections 35(2) and 36(1) for how revocation comes about).
- Reach: "notwithstanding any provision of this Act specifying the time" and covering "anything required or authorised to be done by or under this Act in connection with the application".
- Even expired time. The Controller may extend time "whether or not that time has previously expired".
- Discretion and conditions. "may" and "subject to such conditions, if any, as he thinks fit to impose".
This matters because a long secrecy period can overrun time limits such as the one in section 21 for putting an application in order. The proviso to section 11B(4) separately lets the request for examination be made within the prescribed period from revocation. See our articles on section 21 and section 11B.
What these sections do not say
- They do not give the amount of solatium or any method to compute it.
- They do not say how long an extension under section 38 may be.
- They do not say what happens to the application if directions are never revoked, beyond the proviso that no patent is granted.
- They do not give any form or fee.
Need help with ...?
If an application is under a secrecy direction, the key questions are what can still be done, what time limits run, and what compensation may be sought. Our team can advise through a legal consultation.
Key takeaways
- While directions are in force the Controller cannot refuse to grant and no appeal lies from his orders on the application.
- The application may proceed up to the stage of grant but is not published and no patent is granted.
- Government use is treated as if a patent had been granted (sections 100, 101, 103), and a solatium may be paid for hardship.
- No renewal fee is payable for the period of the directions.
- On revocation, the Controller may extend time for any step, even if it has expired.
Read next
- Section 39 and 40: residents not to apply outside India
- Section 35 and 36: secrecy directions
- Section 41 and 42: finality of orders and savings
- Government use of patents: sections 100 to 102
Disclaimer: Based on the Patents Act, 1970 as amended up to the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and time limits under the Patents Rules, 2003 change from time to time and are not covered here. This article is general information, not legal advice; check the official text before acting.