It is increasingly observed that a paper accepted by a journal or a thesis uploaded to an institutional repository appears online before any patent filing is made. Since March 2024, the Indian Patent Rules expressly provide a Form 31 route to claim a statutory grace period, which has prompted many researchers to ask whether their publication can still be patented. The short answer is that India follows absolute novelty, and post-publication filing is possible only through tightly defined exceptions. Getting this right requires matching your disclosure to the correct statutory window and filing the paperwork promptly.
India’s starting point, in one line: absolute novelty
Indian law assumes that any public disclosure before your filing date can defeat novelty. Courts apply the classic anticipation test, asking whether the prior disclosure clearly and unambiguously teaches what is claimed. Delhi High Court’s F. Hoffmann-La Roche v. Cipla decisions discuss anticipation against this benchmark. In practice, once a paper or thesis is public, you must locate a statutory exception or you are out of luck.
The narrow grace windows you can actually use
Chapters 6 of the Patents Act lists situations that do not amount to anticipation. For post-publication filing, four provisions matter most.
Section 31, clause (d): “learned society” papers.
Section 31, clauses (a) to (c): exhibitions.
Section 29(2): wrongful or non-consensual publication.
- Section 32: public working for reasonable trial.
“Learned society” versus journals and theses, what actually qualifies
The statute does not define “learned society”, and Indian courts have not yet laid down a definitive test for what counts as a society or its “transactions”. Practitioner analysis cautions that ordinary journal platforms or open websites are not automatically “transactions” of a learned society. A thesis placed on a university website, a preprint server, or a commercial publisher’s site will usually not fit Section 31(d), unless the publisher is truly the learned society whose transactions you can prove. Treat Section 31(d) as a narrow doorway, not a general safety net.
Practical pointer: when you intend to rely on Section 31(d), keep contemporaneous evidence, such as the society’s charter, membership, proof of the meeting where the paper was read, and the record identifying the publication as the society’s transactions. These exhibits matter when the Controller asks for proof.
Provisional-first strategy that keeps you safe
Section 33 protects you against your own use or publication after filing a provisional specification. If you file a provisional first, later publication of the same subject matter will not anticipate your complete specification, provided the complete is filed within the usual timeline. This is the single most reliable way to avoid novelty loss from conferences or thesis submissions scheduled after your filing.
Communication to Government and regulatory filings
Many research projects involve regulatory submissions or Government-funded evaluations. Section 30 states that communication to Government, or anything done in consequence of such communication for investigation, does not anticipate. Delhi High Court in J. Mitra & Co. v. Kesar Medicaments recognised this carve-out in the regulatory context. If your data went only to a regulator and was not public, Section 30 usually covers you.
The 2024 procedure change you must not miss: Rule 29A and Form 31
From 15 March 2024, the Patents Rules require an applicant who wishes to avail the Section 31 grace period to file Form 31 with the prescribed fee, and to adduce evidence supporting the claimed clause, for example, the exhibition notification or learned society records. This formalises what used to be argued informally in prosecution. File it early, ideally with or promptly after your application, so the record is clear.
Fees snapshot: current commentary summarises official fees for Form 31 by entity type; always check the latest First Schedule at filing.
Five fast scenarios, matched to the right tool
My thesis is already live on a university repository. Can Section 31(d) save me?
Generally no. A university repository is unlikely to qualify as “transactions” of a learned society. Unless the repository is the learned society’s own record, Section 31(d) will not apply. Consider whether a prior provisional can anchor Section 33, or whether the repository upload was embargoed or not truly public.My paper appeared in the journal of a recognised professional society.
Check if the society is a bona fide learned society and if the journal is its official “transactions”. If yes, file within 12 months and submit Form 31 with proof.My slides were shown at a Government-notified exhibition.
If the exhibition was notified under Section 31, and you file within 12 months from opening, you can rely on clauses (a) to (c), with Form 31 and the notification as evidence.A collaborator posted our draft without consent.
Consider Section 29(2). You must show lack of consent and that you filed as soon as reasonably practicable, and there was no intervening commercial working. Document the timeline carefully.We needed to test a prototype outdoors.
If testing in public view was reasonably necessary, Section 32 can apply, but file within one year of such testing and preserve test protocols as evidence.
Filing checklist when publication has already happened
Map the disclosure to a specific clause: Section 31(d) learned society, Section 31 exhibition, Section 29 wrongful publication, or Section 32 public trial. Cite the exact dates.
File the patent application before the 12-month window expires, counting from the event date relevant to your clause. Use a provisional if the invention is still evolving, then follow with a complete.
Lodge Form 31 with supporting evidence and fee if relying on Section 31. Keep originals of programmes, minutes, society constitutions, exhibition notifications, and screenshots with timestamps.
If the first filing will be a PCT, aim to file it within the same 12 months so the relief is locked-in at the earliest application. Do not assume that a later national phase entry extends the statutory grace window.
For future work, consider a provisional-first habit so that any later academic dissemination sits behind Section 33.
FAQs woven into practice
Is there a general US-style 12-month grace period in India?
No. India’s grace relief is event-specific. You must fall squarely within Sections 29, 30, 31 or 32, and meet timelines and proof requirements.Will a DOI-first online publication by a commercial publisher qualify as “transactions of a learned society”?
Not by default. Unless the publisher is the learned society itself and the journal is its transactions, Section 31(d) is unlikely to apply.If I filed a provisional before my viva, can I safely upload the thesis afterwards?
Yes, for subject matter covered by the provisional, Section 33 protects later use or publication. Stay consistent between the provisional and the thesis text.Do I need to cite cases when invoking these clauses?
Examination is statute-led, but case law clarifies tests. For anticipation, Roche v. Cipla is often cited on what counts as a prejudicial disclosure. For regulatory communications, J. Mitra v. Kesar Medicaments supports Section 30.Bottom line for researchers
If your paper or thesis is already public, treat Sections 29 to 32 as a narrow rescue kit. Identify the right clause, move within the 12-month ceiling where applicable, and file Form 31 with solid evidence where Section 31 is invoked. For future projects, a provisional-first approach remains the most dependable way to publish without jeopardising novelty.
