As per the provisions envisaged in the Indian Patent Act, 1970, a patent application may be voluntarily withdrawn at any time after filing the application. However, the same should be done before the grant of a patent by making a request in the prescribed manner. The withdrawal of an application may be primarily classified to be requested at two stages. The details of these stages are as under:
1. Before publication:
As per Section 11A (3)(c), a patent application may be withdrawn within 15 months from the date of application or date of priority of the application, whichever is earlier. The request for such withdrawal may be made in Form 30 without payment of any fee.The advantage here is that the application does not constitute to be a prior art as the same is withdrawn under Section 11 A (3)(c) before it is published by the Indian Patent Office (IPO). This provision may be exploited for refiling the same application again by incorporating revisions. As, the application stands withdrawn with effect from the date on which the request is submitted before the IPO, the said application can be refiled the very next day of withdrawal.
2. After publication
As per Section 11B (4), a patent application in which a request for examination is filed may be withdrawn by making a request on Form 29. Here, it is again possible to either withdraw without publication or with publication. The two possible scenarios are:
- In case a request for examination was filed within 15 months for a patent application which was filed not more 15 months back, then the application will be withdrawn and also, will not be published.
- In case the request for examination was filed after 15 months of filing of the patent application, then the application will
be withdrawn as well as published.
Further, 90% of the fees of the request for examination is refunded after filing of Form 29 before the IPO.Cancellation of Request of withdrawalIn certain cases where a withdrawal request has been inadvertently submitted to IPO due to clerical errors, request to undo the withdrawal may be submitted under Section 78(2) with a payment of prescribed fees to the IPO.