The majority of inventors face a single question very often in their innovation journey:
“Should I publish my work in a journal first, or should I file a patent application before making it public?”
This isn’t a hypothetical dilemma or merely a simple operational query. I’ve seen PhD scholars lose patent rights because they rushed to publish for academic deadlines. I’ve also met startup founders who missed investor opportunities because they delayed publication while figuring out patents. The balance is delicate, and in India, the law makes the choice even more critical.
Why This Decision Matters
Publication and patenting serve very different purposes.
Publication builds your academic reputation. A research paper is a historically tested tool, and if it is in a reputable journal, it can boost your career, attract collaborations, and contribute to science.
Patents, on the other hand, protect commercial/monetizable rights. They give you the legal monopoly to use, sell, or license your invention, and thereby earn money.
The problem? In India, if you publish first, you almost always destroy your chance to patent.
Unlike some countries that have more relaxed rules, Indian law requires absolute novelty. That means your invention must not be disclosed in India and elsewhere in the world before you file your patent application. For this purpose, a research article, a conference talk, or even a detailed LinkedIn post can count as disclosure.
How Indian Law Looks at This Question
The Indian Patents Act, 1970, sets the basis for prior publication and related matters. Let’s break it down without complex legal terminology:
Novelty is strict
Once your research is in the public domain, you can’t claim it’s new. Indian examiners look globally, not just locally.Grace periods are rare
Sections 29 to 34 of the Act provide a 12-month grace period, but only for limited scenarios:If your work was displayed at a government-approved exhibition.
If it was presented before a “learned society” with official recognition.
If it was disclosed without your consent.
In practice, most journal publications or academic conferences don’t fall under these exceptions.
Incremental research faces an extra hurdle
Section 3(d) famously prevents patents on mere modifications of known substances unless they show significant enhancement in efficacy. The Supreme Court’s decision in Novartis v. Union of India (2013) is a textbook case. Novartis tried to patent a slightly modified cancer drug (Glivec). The Court refused, holding that “new form” was not enough, it needed clear therapeutic improvement.
For researchers, this ruling is a reminder: patents in India must demonstrate genuine advancement, not cosmetic changes.
Why Patent Filing Before Publishing Is Almost Always Safer
Let’s make this practical with three scenarios:
A PhD student working on a new drug delivery method. If she publishes in Nature before filing, her chance at a patent is gone. If she files even a provisional application first, she can still publish freely.
A business owner pitching to investors. Without a patent (or at least an application filing), the business may face investors dismissing the idea as unprotected.
A senior professor who wants both recognition and commercialisation. Filing first protects the innovation, and the subsequent paper strengthens credibility.
In every case, patent first provides flexibility, while publishing first can close the door permanently.
The Provisional Patent: A Practical Middle Path
Many researchers hesitate to file patents because they think it’s expensive or time-consuming. But India allows for a provisional patent application, which is a lifesaver:
It secures your priority date (the single most important date in patent law).
It doesn’t require full details upfront, you get 12 months to file the complete specification.
It buys you time to refine your invention while still letting you publish.
In short: if you’re not fully ready, file a provisional. It’s cheaper, faster, and keeps your options open.
How to Publish Safely After Filing
Once you have filed (even provisionally), you are free to publish your work. In fact, many Indian inventors include a line in their papers such as:
“A patent application covering this research has been filed under the Indian Patents Act, 1970 (Application No. …).”
This approach does two things: it protects your rights, minimises the risks of the invention being stolen, and signals credibility to peers, funders, and industry partners.
Another option is to request early publication from the Patent Office. Normally, Indian applications remain secret for 18 months. But if visibility is important, for example, during academic promotions, you can request early publication, and the Patent Office will publish the application within weeks.
When Publishing First May Make Sense
Are there situations where you should publish first? Yes, but they are narrow.
If the work has no commercial potential (say, a purely theoretical model with no foreseeable application), publishing may be more valuable.
If cost is a constraint and neither you nor your institution can afford filing fees, you may choose recognition over protection, but think 100 times before you do so. Once you disclose your invention, you lose the opportunity to patent it and get commercial benefits.
If your primary goal is academic credit/requirement, as in most academic cases is, for example, like meeting a PhD submission deadline, you might prioritise publication.
But even in these cases, it’s worth speaking to a Patent Agent.
A Simple Decision Checklist
Here’s a quick way to test your situation:
Does the research have commercial value?
Yes → File first.
No → Publish is safe.
Are you under an institutional IP policy?
Yes → Inform them immediately.
No → Talk to a Patent Agent for provisional filing.
Is the work incremental or groundbreaking?
Incremental → Harder to patent, weigh carefully.
Groundbreaking → Patent first without delay.
A Landmark Example: Novartis v. Union of India
The Novartis Glivec case deserves a closer look because it highlights India’s philosophy on patents.
Novartis developed a slightly modified form of an existing cancer drug and sought a patent in India. The company argued it was more stable and bioavailable. The Indian Patent Office rejected it, citing Section 3(d). The Supreme Court upheld the rejection, ruling that the modification did not demonstrate a significant therapeutic improvement.
The case became a global headline because it showed India’s determination to prevent “evergreening” where companies extend monopolies with minor tweaks. For Indian innovators, the lesson is clear: patents must represent true advancement. Publishing early, without securing rights, can weaken your ability to argue for novelty and inventive step later, as self-publication also acts as a novelty destroyer.
Practical Tips Before You Decide
Keep detailed lab notes: Proper records (dated and witnessed) in the form of notes, logs, and files are invaluable if disputes come up.
Use confidentiality agreements: If you need to discuss your idea with peers, outsourcing agencies, experts or investors before filing an application, use NDAs.
File early, refine later: Even rough drafts can be filed provisionally—better to be safe.
Think internationally: If your work has global value, plan for filings outside India as well (through PCT applications).
Final Thoughts
The “publish or patent” dilemma is not new, but in India, the answer is clearer than in many other countries. The law strongly favours those who file before they publish.
As an innovator, you don’t have to choose one over the other forever. With the right planning, you can have both legal protection and academic recognition. But timing is critical. A few weeks of delay or a rushed conference abstract can make the difference between owning your idea and losing it forever.
So before you upload that paper to a journal or hit “submit” on EasyChair for a conference, take a moment. Ask yourself:
“Have I done something to protect this idea yet?”
That pause could be the difference between a fleeting paper and a protected invention with real-world value.
