Section 118 of the Patents Act, 1970
Contravention of secrecy provisions relating to certain inventions
Section 118 makes it a criminal offence to break a secrecy direction or to file a patent abroad without the required permission.
Official legal text
The verbatim statutory text of this provision is reproduced from the official source and checked by our legal reviewer before it is published here. Until that check is complete for this page, read the exact wording directly from the official source linked below — it is the only version that governs.
This is a simplified explanation. Where it differs from the official text of the provision, or from an applicable Gazette notification, the official text and the notification prevail.
What this section says, in plain language
Some inventions touch national security, for example in defence, missiles, cryptography or atomic energy. The Act deals with them in two ways. Section 35 allows the Controller, on the advice of the Central Government, to issue a secrecy direction that stops an invention from being published or communicated. Section 39 stops a person resident in India from filing a patent application outside India for an invention made here unless permission is obtained from the Controller, or unless the invention was first filed in India and a set waiting period passes without a secrecy direction being issued. Section 118 supplies the criminal consequence for breaking either rule.
A person who does not comply with a secrecy direction, or who makes or causes to be made a patent application abroad in breach of Section 39, can be punished with imprisonment of up to two years, or a fine, or both. This is a genuine criminal offence, not a mere administrative penalty. Contravention of the foreign filing rule was not converted into a monetary penalty when Parliament decriminalised some other patent provisions in 2023, which shows how seriously security-related disclosure is treated.
The criminal punishment is not the only consequence. Section 40 provides that if an applicant contravenes Section 35 or Section 39, the Indian application is treated as abandoned, and any patent granted on it can be revoked under Section 64. So a single unpermitted foreign filing can cost the applicant the Indian patent as well, and can damage the value of the whole international family. Where a company is involved, Section 124 can bring its officers into the picture.
In practice the rule bites most often in ordinary commercial situations, not in spy stories. Researchers with foreign collaborators, Indian employees of multinational groups whose head office files in the United States first, and founders using overseas counsel are the usual candidates. The safe path is simple: either file in India first and observe the waiting period, or apply for foreign filing permission under Section 39 using the prescribed route in Rule 71 and wait for the Controller's response before anything is filed abroad.
Why this section matters
Inventors and companies resident in India, research institutions with foreign partners, and Indian staff of multinational groups.
Before any application, including a provisional or a PCT application, is filed outside India for an invention made in India.
Criminal liability, with imprisonment of up to two years, a fine, or both, for breaching secrecy directions or the foreign filing rule.
Prosecution, abandonment of the Indian application under Section 40, revocation of any patent granted, and serious damage to the invention's commercial value.
How it works in practice
A foreign filing that put an Indian patent at risk
Rohit Bhandari is a design engineer at a Pune subsidiary of a European group. He develops an improved thermal shielding material at the Pune plant. The group's patent team in Munich, following its own routine, files the first application at the European Patent Office and tells Rohit it will handle India later through the PCT. Nobody applies for foreign filing permission under Section 39, and nothing was filed in India first, so the waiting-period route is not available either. The invention was made in India by a person resident in India, so the foreign filing breaches Section 39. That exposes those responsible to prosecution under Section 118, and it means that when the family later enters India, the Indian application is vulnerable, because Section 40 treats an application filed in breach as abandoned and makes any patent granted liable to revocation under Section 64. The group's Indian counsel now has to manage a problem that a single permission request could have avoided.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Breaking a secrecy direction under Section 35 is an offence under this section.
- Filing or causing a patent application to be filed abroad in breach of Section 39 is also an offence.
- Punishment can extend to two years imprisonment, or a fine, or both.
- Section 40 adds civil consequences: the Indian application is deemed abandoned and any patent granted can be revoked.
- Officers of a company can be brought in through Section 124 where the company commits the offence.
- The safe routes are to file in India first and wait the prescribed period, or to obtain permission under Section 39 through Rule 71.
Common mistakes and misunderstandings
- Thinking the rule applies only to defence inventions. Section 39 covers inventions generally when the applicant is resident in India, whatever the field.
- Believing a provisional application or a PCT application filed at a foreign receiving office does not count. Any application for protection abroad can attract the section.
- Assuming an employer abroad takes the legal risk. The Indian resident who makes or causes the foreign filing is exposed under Indian law.
- Treating permission as a formality that can be regularised later. There is no way to undo a filing that has already been made, and the consequences under Section 40 follow automatically.
Connected provisions
- ActSection 35Secrecy directions relating to inventions relevant for defence purposes
- ActSection 39Residents not to apply for patents outside India without prior permission
- ActSection 40Liability for contravention of section 35 or section 39
- ActSection 64Revocation of patents
- ActSection 124Offences by companies
A section tells you what the law is. A rule tells you how the Patent Office runs it from day to day. The two are kept apart here so that a reader can quote the section accurately and then look up the current rule for the practical steps.
Forms, deadlines and fees
Forms are not set out in the Act. They are prescribed in the Second Schedule to the Patents Rules and are revised from time to time, so obtain the current version from the official website before filing.
- If you rely on the route of filing in India first, at least six weeks must pass between the Indian filing and any foreign filing, and no secrecy direction may have been issued in that time.
- If you apply for permission under Section 39, nothing may be filed abroad until the Controller grants permission, so build that waiting time into your filing plan.
- Where a secrecy direction is in force, the restriction continues until it is revoked, and the direction is reviewed periodically under Section 36.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
This site does not carry a fee table. The First Schedule to the Patents Rules is the source, the rates vary with the applicant's category and with the mode of filing, and a figure quoted second-hand goes out of date quietly. How Indian patent fees work.
Related judgments
Case law is added slowly and deliberately. A summary is drafted, checked against the reported judgment and then reviewed before publication, because a wrong case note can mislead a reader badly. No summary for this provision has reached publication yet. How case notes are prepared.
Questions people ask about Section 118
Is filing a patent abroad without permission really a criminal offence in India?
Yes, where the applicant is resident in India and the invention falls within Section 39. Section 118 provides for imprisonment of up to two years, or a fine, or both, for making or causing such a foreign filing, and for contravening a secrecy direction issued under Section 35. Alongside the criminal exposure, Section 40 treats the related Indian application as abandoned and makes any granted patent liable to revocation. The way to avoid all of this is to seek permission before filing, or to file in India first and observe the prescribed waiting period.
How do I get permission to file a patent application outside India?
You apply to the Controller under Section 39 using the route in Rule 71, on the prescribed form and with the fee set out in the First Schedule. The request describes the invention and states the countries where you intend to file. Applications are generally dealt with quickly, but you must wait for the written permission before anything is filed abroad. If you have already filed in India, you can instead rely on the alternative route: wait the prescribed period after the Indian filing and check that no secrecy direction has been issued.
Does Section 118 apply to foreign nationals working in India?
The test in Section 39 is residence in India, not nationality. A foreign national who is resident in India and makes an invention here is expected to follow the same rule, and an Indian citizen living abroad may fall outside it. Because residence can be a question of fact in borderline situations, such as long assignments or remote working across countries, companies with cross-border research teams should set a written policy on who clears foreign filings and check each case before instructing overseas counsel.
What happens if my company already filed abroad by mistake?
This is a serious situation and it needs professional advice on the specific facts. In general terms, permission cannot be given after the event for a filing that has already happened, and Section 40 attaches consequences to the Indian application and to any patent granted on it. What a company can do is establish the facts precisely, including dates, inventor residence and where the invention was actually made, then take advice on how to handle the Indian family and on managing risk. Do not file further applications abroad while the position is unclear.
Planning to file your invention outside India?
MYCrave Consultancy checks whether you need foreign filing permission and prepares the Section 39 request before you file abroad.
You will be speaking with MYCrave Consultancy & Services, the firm that operates this platform. General questions are answered free; matter‑specific work is quoted before anything is done.