Accordingly, therefore, in future, the mechanism of extending the time for filing a complete specification by a period of six months when information is not available at the twelve months threshold, will not be available if the application is accompanied by a provisional specification.Under these circumstances, the only mechanism by which the change of date will be allowed is under Section 9(4) and the mechanism is as follows: A complete specification must be filed within twelve months of the filing of the provisional specification.Care must be taken, however, that the priority application should be abandoned well within the eighteen months period to ensure that the parent application is not published which means that the national phase in India must be filed soon after filing of the international application under the PCT.
An application under the PCT can be filed thereafter designating all countries including India and then filing a national phase in India based on that PCT.
Section 17(1) of the Patents Act states as follows: "" Section 17(1) states that a patent application may be post-dated up to six months from the date on which it is actually filed.
However, it is evident from the preamble of Section 17(1) that the section is subject to Section 9, which means that all subsections of Section 9 must be complied with before implementing Section 17.
Therefore, Section 17(1) of the Patents Act cannot be interpreted in a way which may conflict with Section 9 of the Patents Act.
Therefore, while invoking Section 17(1) for the post-dating of a provisional application where the complete specification has not been filed, Section 9(4) must not be taken into account.