Section 40 of the Patents Act, 1970
Liability for contravention of section 35 or section 39
Section 40 sets the civil price of breaking secrecy directions or filing abroad without permission: abandonment of the application and revocable patent.
Official legal text
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What this section says, in plain language
Chapter VII builds a control system around defence-relevant inventions. Section 35 allows secrecy directions, and section 39 controls foreign filing by Indian residents. Section 40 is the enforcement clause that gives both of them teeth on the patent side.
Two triggers are covered. The first is contravening a direction as to secrecy given under section 35, for example by publishing or communicating information about the invention when the directions prohibited it. The second is making, or causing to be made, an application for a patent outside India in contravention of section 39.
The consequences follow in two stages. The application for a patent under the Act is deemed to have been abandoned. That is a direct statutory result, not a discretionary sanction. And where a patent has already been granted, it becomes liable to be revoked under section 64. The words liable to be matter. Revocation is not automatic. Someone must seek it, and the authority hearing the matter decides whether it is made out on the facts.
Section 40 is expressly without prejudice to the offences provisions, so it sits alongside section 118 rather than replacing it. The same conduct can therefore cost the applicant the pending application, expose a granted patent to revocation, and attract criminal liability. Few other provisions in the Act combine those consequences.
The phrase causes to be made in section 39 carries through to section 40 in practice. It reaches the person who arranges or instructs the foreign filing, which in corporate life is often a parent company, an in-house counsel or an outside firm acting on instructions rather than the inventor personally. That is why foreign filing policy in companies with Indian research staff should be written down and followed.
There is no fee, form or curative filing that reverses a contravention. Compliance before the fact is the only reliable protection.
Why this section matters
Applicants and patentees who received secrecy directions, and any Indian-resident inventor or company involved in filing patent applications abroad.
It bites as soon as a contravening act happens, and surfaces later in examination, opposition, revocation proceedings and due diligence.
It creates a deemed abandonment of the Indian application and makes any granted patent liable to revocation under section 64.
The Indian right can be lost entirely, the patent family loses its Indian member, and the conduct also remains punishable under section 118.
How it works in practice
A contravention surfaces during due diligence
Two years after the events at Nirvaha Photonics Pvt Ltd, the group begins a funding round and the investor's advisers run patent due diligence on the Indian portfolio. They compare the priority documents with the inventor addresses on record and see that the first filing was made in the United States while both named inventors were resident in Bengaluru, with no Indian application in place and no written permission from the Controller. The advisers flag section 39, and note that section 40 deems the Indian application to have been abandoned and makes any patent granted on it liable to revocation under section 64. The Indian member of the family is written down to nil in the valuation, and the investor asks for an indemnity covering the exposure under section 118. The group then adopts a written policy requiring every invention made by India-resident staff to be filed in India first.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Two triggers: breaching secrecy directions under section 35, or foreign filing in contravention of section 39.
- The Indian application is deemed abandoned as a direct statutory consequence.
- A granted patent becomes liable to revocation under section 64, which still requires a petition and a decision.
- The section operates without prejudice to the offences provisions, so section 118 liability remains available.
- Causing a foreign application to be made is enough, so instructing parties are exposed as well as applicants.
- There is no procedure to cure a contravention after it has happened.
Common mistakes and misunderstandings
- Assuming revocation is automatic. The patent is liable to be revoked, which means someone must seek revocation and the authority must decide it.
- Assuming abandonment is the whole story. Criminal liability under section 118 is separate and is expressly preserved.
- Believing an Indian filing made later cures an earlier unauthorised foreign filing. It does not undo the contravention that has already occurred.
Connected provisions
You will find the related rules grouped below rather than inside the explanation. The separation is deliberate. The Act and the Rules are distinct legal instruments, and mixing them can lead a reader to attribute a procedural requirement to the statute itself.
Forms, deadlines and fees
We do not publish fee amounts. The First Schedule sets them, and they differ by category of applicant, such as a natural person, a startup, a small entity or another applicant, and by the mode of filing. Check the Schedule currently in force before you calculate anything. How Indian patent fees work.
Related judgments
You will not find case summaries under this heading today. Each one must pass a legal review before it appears, and that work has not been completed for this provision. If you are researching decided cases, use a law report or a court database in the meantime. How case notes are prepared.
Questions people ask about Section 40
Is my Indian application automatically dead if section 40 applies?
The section says the application is deemed to have been abandoned, which is a strong statutory consequence and not a discretionary penalty. A granted patent stands on a slightly different footing, because it is liable to be revoked under section 64 rather than revoked automatically, so a proceeding is needed. Because the facts drive everything, including who was resident where and who instructed the filing, the position in any specific case has to be assessed on the documents rather than assumed from a general description.
Can section 40 affect patents in other countries?
The section operates on the Indian application and the Indian patent. It does not by itself invalidate a corresponding patent granted in another country, because each country applies its own law. The commercial effect is still significant. Losing the Indian member of a family removes protection in a large market, and the exposure usually has to be disclosed in due diligence, licensing and acquisition processes. Several other countries have their own first-filing rules, so parallel problems can exist elsewhere.
Who is exposed when a foreign parent instructs the filing?
Section 39 covers a person resident in India who makes or causes to be made an application outside India, and section 40 attaches its consequences to that contravention. In group structures the analysis usually focuses on the residence of the inventors and on who took the decision to file abroad. Companies with Indian research teams reduce the risk by adopting a written policy of filing in India first, or of obtaining permission in Form 25 under Rule 71 before any foreign filing is instructed.
Worried about an unauthorised foreign filing?
MYCrave Consultancy audits your filing sequence, quantifies the exposure under sections 39 and 40, and puts a compliant process in place.
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