Some plane parts were frequently replaced by their owners, or are easily separated from the plane, such as irons, cap irons, knobs and totes, and lever caps.
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.
Further, the reading of Section 17(1) alongside Section 9(1) raises concern as to whether the deadline for filing a complete specification pursuant to a provisional application is to be calculated from the original filing date or from the post-dated date. However, the RAC report can be interpreted as suggesting a legislative intent to introduce the post-dating provision into the act in order to provide more time for filing a complete specification at the cost of some risk involved in shifting the priority date.
In this decision the court did not take into account the legislative intent behind the introduction of the concept of post-dating where the complete specification has not been filed pursuant to the provisional application and where the applicant intends to post-date the patent application.
Since this decision, the issue of post-dating has not been addressed by any other court or the IP Appellate Board.
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.
Precedent In 1999 the Delhi High Court in ((1999 IVAD Delhi 613, AIR 2000 Delhi 23, 80 (1999) DLT 56)) cited Sections 9 and 17, and stated that a patent could be post-dated only to the date of filing the complete specification.
Moreover, Section 17(1) allows the post-dating of a patent application by up to six months, and Section 9(4) allows post-dating by more than six months.
Section 17(1) appears not to apply in the case where the complete specification has already been filed pursuant to the provisional application due to the fact that Section 17(1), which allows post-dating by up to six months, is prefaced by the words “Subject to the provisions of Section 9”, and Section 9(4) allows post-dating in similar cases by more than six months.
This approach doesn't guarantee that you'll date your plane correctly, as the flowchart can be thrown off by some hybrids.