Section 39 of the Patents Act, 1970
Residents not to apply for patents outside India without prior permission
Section 39 stops a person resident in India from filing a patent application abroad first, unless the Controller gives written 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.
Nothing here replaces the statute. The official wording of the provision, together with any Gazette notification that applies to it, governs. This page only explains that material in ordinary language.
What this section says, in plain language
India, like several other countries, wants the first look at inventions made by its residents. The reason is national security. If an invention with defence significance could simply be filed abroad, the secrecy machinery in Chapter VII would never get the chance to operate. Section 39 is the rule that makes that machinery effective.
The rule is that a person resident in India must not make, or cause to be made, an application outside India for a patent for an invention, unless one of two conditions is satisfied. The first is written permission from the Controller, commonly called a foreign filing licence. The second is that an application for a patent for the same invention has already been filed in India not less than six weeks before the foreign application, and either no direction under section 35 has been given or every such direction has been revoked.
The two routes suit different situations. The six-week route costs nothing and needs no request. You file in India, wait six clear weeks, and then file abroad, provided no secrecy direction is in force. The permission route is used when there is no Indian application, when a foreign deadline falls sooner than six weeks after the Indian filing, or when there is any doubt about defence relevance. A request for permission is made in Form 25 under Rule 71, and the Rule requires the Controller to dispose of the request within twenty-one days, with the period counted differently where consent relating to defence or atomic energy is needed.
The trigger is residence, not citizenship. An Indian citizen who lives and works abroad is generally outside the section, while a foreign national resident in India is generally inside it. That catches a common corporate situation. An Indian subsidiary of a multinational makes an invention, the inventors are resident in India, and the group's usual practice is to file first in the United States or Europe. Unless a licence is obtained or the six-week route is followed, that ordinary corporate habit is a contravention.
The consequences are severe. Section 40 provides that the Indian application is deemed to have been abandoned and any patent granted becomes liable to be revoked under section 64. Section 118, in the offences chapter, adds criminal liability. Very few provisions of the Patents Act carry that combination, which is why foreign filing sequence should be settled before the first application is filed anywhere.
Why this section matters
Any person resident in India who wants patent protection abroad, including startups, MSMEs, research institutions, and Indian units of multinational groups.
It applies before any foreign patent application is filed, including a PCT application filed at a foreign receiving office.
It creates a prohibition on foreign filing by Indian residents, together with a licence procedure and a six-week alternative route.
The Indian application is deemed abandoned, any patent granted is liable to be revoked under section 64, and criminal liability arises under section 118.
How it works in practice
A foreign parent files first and the Indian application suffers
Nirvaha Photonics Pvt Ltd is the Bengaluru research unit of a group headquartered in California. Two engineers based in Bengaluru invent a method of stabilising an optical modulator. Following group practice, the parent files a United States provisional application naming both engineers as inventors. No Indian application exists, and no request in Form 25 is made. Four months later the group files in India through its Indian agents. During prosecution a competitor becomes aware of the sequence from the priority documents and raises section 39 in a pre-grant representation, later pursuing revocation under section 64 on the ground made available by section 40. Nirvaha's position is difficult, because the inventors were resident in India and the parent caused the application to be made outside India. Had the group either obtained the Controller's written permission or filed in India six weeks before the United States filing, the problem would not have arisen.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The section applies to persons resident in India, whatever their nationality.
- You may file abroad after obtaining the Controller's written permission in response to a request in Form 25 under Rule 71.
- Alternatively, file in India at least six weeks before the foreign application, with no secrecy direction subsisting.
- Rule 71 requires the Controller to dispose of a permission request within twenty-one days, counted differently where defence or atomic energy consent is involved.
- Causing an application to be made abroad is caught as well as making one, so instructing a foreign filing counts.
- A PCT application filed at the Indian Patent Office as receiving office is an Indian filing; one filed at a foreign receiving office is not.
- Contravention leads to abandonment and possible revocation under section 40, and to criminal liability under section 118.
Common mistakes and misunderstandings
- Thinking the section applies only to Indian citizens. It turns on residence, so a foreign national working in India is covered and a citizen living abroad usually is not.
- Counting the six weeks loosely. The Indian application must be filed not less than six weeks before the foreign application, so a filing at five weeks does not comply.
- Assuming a foreign parent's filing is not your problem. The words cause to be made reach the person who instructs or arranges the foreign filing.
- Filing abroad while secrecy directions are in force. The six-week route is unavailable in that situation, whatever the timing.
Connected provisions
- ActSection 8Information and undertaking regarding foreign applications
- ActSection 35Secrecy directions relating to inventions relevant for defence purposes
- ActSection 40Liability for contravention of section 35 or section 39
- ActSection 64Revocation of patents
- ActSection 118Contravention of secrecy provisions relating to certain inventions
This page explains a section of the Patents Act, 1970. The working detail that goes with it lives in the Patents Rules, 2003. The connected rules appear in their own block so that the statutory duty and the procedural steps stay clearly distinguishable when you cite either one.
Forms, deadlines and fees
Where a form is required, the Second Schedule to the Patents Rules prescribes it. Superseded versions circulate widely online, so download the current form from the Patent Office and check it against the rule before use.
- If you rely on the six-week route, at least six weeks must pass between the Indian filing and the foreign filing.
- A request for permission under Rule 71 is to be disposed of within twenty-one days, with the period counted from receipt of Central Government consent where defence or atomic energy is involved.
- No foreign filing may be made at any time while a direction under section 35 is in force.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Where a fee is payable under this provision, the figure comes from the First Schedule. Categories of applicant are charged at different rates, and electronic filing is treated differently from paper filing, so an accurate number can only come from the Schedule in force on the day you file. How Indian patent fees work.
Amendment history
What changed in this provision, newest first. Read the footnotes in the official consolidated text for the full record.
- 2005The Patents (Amendment) Act, 2005The section was replaced with the present rule. A person resident in India needs written permission before applying abroad, unless an application for the same invention was first filed in India and the prescribed waiting period passed without a secrecy direction.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
Related judgments
Court decisions shape how this provision is applied, but a summary is useful only if it is right. Every case note on this site is read by a legal reviewer before it goes live, and none has been completed for this provision so far. This section will fill in as those reviews finish. How case notes are prepared.
Questions people ask about Section 39
Do I need permission if I file in India first?
Not if you follow the six-week route correctly. Where an application for the same invention has been filed in India not less than six weeks before the foreign application, and no secrecy direction under section 35 is in force or all directions have been revoked, no separate permission is needed. If you cannot wait six weeks, or if the invention may be defence relevant, request written permission from the Controller in Form 25 under Rule 71 instead. When in doubt, the licence route is the safer one because it produces a written record.
Does a PCT application count as filing outside India?
It depends on where the PCT application is filed. A PCT application filed with the Indian Patent Office acting as receiving office is filed in India. A PCT application filed at a foreign receiving office, or a national application filed directly in another country, is an application made outside India for the purposes of section 39. Where Indian-resident inventors are involved, either file the PCT application through the Indian receiving office or make sure the six-week route or a written permission is in place first.
What if I have already filed abroad without permission?
This is a serious position rather than a formality, because section 40 deems the Indian application to have been abandoned and makes any patent granted liable to revocation under section 64, and section 118 adds criminal liability. There is no simple curative filing. The right step is to get professional advice quickly on the specific facts, including the residence of each inventor, who instructed the foreign filing and what was filed when. General information on a website cannot tell you what to do in your own matter.
Are inventors and applicants treated differently under section 39?
The section speaks of a person resident in India making or causing to be made an application outside India, so the analysis follows the people involved rather than a single label. In corporate practice the residence of the inventors is usually the practical trigger, because the invention was made in India, and the entity that instructs the foreign filing is the one that causes the application to be made. Groups with Indian research units normally address this by adopting a standing rule to file in India first.
Filing your invention abroad from India?
MYCrave Consultancy secures foreign filing permission in Form 25 and sequences your Indian and international filings lawfully under section 39.
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