Form 25 — Request for Permission to Apply for a Patent Outside India
Form 25 asks the Controller for written permission before a resident of India files a patent application abroad.
What Form 25 is for
Section 39 places a restriction that surprises many first-time applicants. A person resident in India may not make, or cause to be made, an application outside India for a patent for an invention unless a written permission has been granted by or on behalf of the Controller, or unless an application has already been made in India and the conditions the section sets are satisfied. Form 25 is the request for that written permission, and Rule 71 sets out how it is made.
The reason is national security. The Act allows inventions relevant for defence purposes to be examined and, where necessary, made the subject of a secrecy direction. If Indian residents could file abroad first, that screening would be bypassed. So the restriction applies generally, not just to inventions that look sensitive, and it applies to the residence of the person, not to the nationality of the applicant or to where the invention was made.
There are two ways to comply. The first is to file in India first, and then file abroad once the conditions in Section 39 are met, which is the route most applicants use without ever needing this form. The second is to seek written permission, which is what Form 25 does, and which is used where the applicant wants to file abroad first or sooner than the Indian route allows. Because the details have been amended over time, download the current Form 25 and read Section 39 and Rule 71 as they now stand.
Who files it, and when
Any person resident in India who wants to file a patent application outside India uses it, whether an individual inventor, a startup, a company or a research institution. It applies to Indian subsidiaries of foreign groups where the person making or causing the foreign application is resident in India, and it can apply where an Indian-resident inventor's employer abroad files first. Where several inventors are involved and some are resident in India, the position of each has to be considered.
It is filed before the foreign application is made. The alternative route is available where an application for a patent for the same invention has already been filed in India and the further conditions in Section 39 are satisfied, including that the period the section fixes has passed and no secrecy direction has been issued in the meantime. That period is fixed by the Act, so the current text should be checked rather than assumed. Where a foreign filing is planned quickly, or where no Indian application will be filed at all, permission should be sought well in advance because a decision takes time.
How it is filed
- Identify every inventor and applicant resident in India, since residence is what triggers the restriction.
- Decide whether to file in India first or to seek permission, based on the commercial timetable.
- If seeking permission, prepare a brief description of the invention sufficient for the office to assess it.
- Complete the current Form 25, stating the countries where filing is intended and the reason for filing abroad.
- Pay the fee prescribed in the First Schedule and file the request.
- Wait for the written permission before making the foreign filing, and keep the permission on file.
- Where the Indian-first route is used instead, confirm that the conditions in Section 39 are satisfied before filing abroad.
What the form asks for
- The names, addresses and residence status of the applicants and inventors.
- The title of the invention and a description sufficient to identify what will be filed abroad.
- The countries or offices where the foreign application is intended to be made.
- The reasons for filing outside India, including any commercial or collaboration background.
- Particulars of any corresponding Indian application already filed.
- The fee prescribed in the First Schedule for the request, paid on filing.
Described in general terms. Form contents are prescribed in the Second Schedule and change — download the current version from the Patent Office rather than working from any summary, including this one.
Common mistakes with Form 25
- Assuming the restriction applies only to defence-related inventions. It applies generally to residents of India, whatever the technology.
- Letting a foreign parent or collaborator file first without checking whether an Indian resident caused that application to be made.
- Filing abroad on the strength of an Indian filing without checking the further conditions Section 39 imposes.
- Treating an international application filed through a foreign receiving office as outside the restriction, when the substance is a foreign filing.
- Seeking permission days before the intended foreign filing, leaving no time for the office to consider it.
What happens if it goes wrong
Contravention of Section 39 is treated seriously. Section 40 provides that a patent granted in India in respect of an invention where the section has been contravened is liable to be revoked, and Section 118 deals with penal consequences in the circumstances it covers. That combination means a breach can cost the Indian patent and expose the persons responsible, so it is not a formality to be tidied up later. If permission is simply not sought and no Indian application exists, the foreign filings may be made in circumstances that cannot afterwards be regularised in India.
A Pune research team plans a United States filing first
This is a simplified illustration. Three researchers resident in Pune develop a battery electrode coating with a collaborator in California. The collaborator's counsel proposes filing in the United States first, because a partner there wants a United States application on file before a funding milestone. The Indian researchers are named as inventors and are resident in India, so Section 39 applies to them. Rather than file abroad and hope, they file Form 25 with a description of the invention and details of the intended United States filing, paying the fee prescribed in the First Schedule, and they wait for the written permission before the United States application is made. The permission arrives, the United States filing proceeds, and an Indian application follows. Had they filed first in the United States without permission, any Indian patent that later issued would have been exposed to revocation.
Simplified illustration only. Actual outcomes depend on the facts.
Questions about Form 25
Who needs foreign filing permission in India?
The restriction in Section 39 attaches to a person resident in India who makes or causes to be made an application for a patent outside India. It is about residence, not citizenship, and it applies whatever the technology. So an Indian-resident inventor working with an overseas company, an Indian subsidiary instructing foreign counsel, or a startup founder filing directly abroad all need to consider it. The safest working assumption is that if an Indian resident is behind a foreign filing, Section 39 has to be addressed.
Do I need permission if I have already filed in India?
Section 39 provides an alternative to written permission where an application for a patent for the same invention has already been made in India and the conditions the section sets are satisfied, which include that the period the section fixes has elapsed and that no direction prohibiting publication or communication has been given in the meantime. Because that period and those conditions are set by the Act and have been the subject of amendment, the current text should be read before a foreign filing is made in reliance on this route.
What happens if a foreign application is filed without permission?
The consequences are serious. Section 40 makes a patent granted in India liable to be revoked where Section 39 has been contravened in relation to the invention, and Section 118 addresses penal consequences in the situations it covers. The problem is that the breach is often discovered years later, during due diligence or litigation, when the Indian patent has become commercially important. This is one of the few compliance points in Indian patent practice where the downside is loss of the patent itself.
Does the restriction cover PCT applications?
What matters is whether an application for a patent is being made outside India by or at the instance of a person resident in India. An international application filed with the Indian Patent Office as receiving office is in a different position from one filed with a foreign receiving office, and the details depend on the facts and on the current text of Section 39 and Rule 71. Because the analysis turns on how and where the filing is made, this should be checked for the specific plan rather than assumed.
Filing a patent abroad from India?
MYCrave Consultancy & Services explains when Section 39 permission is needed and how the request is prepared.