Rule 71 of the Patents Rules, 2003
Permission for making patent application outside India under section 39
Sets out how a person resident in India asks the Controller for written permission before filing a patent application abroad.
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.
The authority is the enacted text, not this page. Where our wording and the official provision, or an applicable Gazette notification, do not match, the official material prevails.
What this rule requires, step by step
Section 39 stops a person resident in India from applying for a patent outside India for an invention, or causing such an application to be made, unless one of two conditions is met. Either a corresponding application was already filed in India at least six weeks earlier and no secrecy direction under section 35 is in force in relation to it, or the Controller has given written permission. Rule 71 is the machinery for that second route, usually called foreign filing permission or a foreign filing licence.
The request is made on Form 25 with the fee prescribed in the First Schedule. It has to give a brief description of the invention, the name and address of the applicant, the countries where the application is proposed to be filed, and the reason for filing abroad, and the Controller may ask for more information. The point of the description is to let the Office judge whether the invention could be relevant for defence purposes or relates to atomic energy.
Rule 71 sets a working timetable. The Controller is to dispose of the request within twenty-one days of its filing. Where the invention concerns defence purposes or atomic energy, that period is counted from the date the Central Government's consent is received, because the Office cannot clear such an invention on its own. Plan around this: permission is not issued across the counter, and an overseas filing deadline that assumes same-day clearance is a badly planned deadline.
The consequences of ignoring section 39 are heavy and are set out elsewhere in the Act. Section 40 provides that a patent granted on an application filed in breach is liable to be revoked, and section 118 makes contravention punishable, including with imprisonment. This is one of the very few parts of Indian patent law that carries criminal exposure, which is why anyone who works with a foreign parent company, a foreign co-inventor, or a United States provisional filing habit should treat Rule 71 as a first step, not an afterthought.
Why this rule matters
Indian residents, including founders, employees of Indian subsidiaries of foreign groups, professors and students, who want to file abroad first or file abroad only.
Before any foreign patent application is filed, including a United States provisional application or a PCT application filed at a foreign receiving office.
A right to apply for, and a duty on the Controller to decide, written permission to file abroad, within a defined timetable.
Any Indian patent on the same invention becomes vulnerable to revocation under section 40, and the person responsible faces prosecution under section 118.
How it works in practice
An investor deadline and a United States provisional
Kestrel Robotics Pvt Ltd in Pune has a warehouse navigation system it wants to protect. Its United States investor asks for a United States provisional application to be on file before a demo day in three weeks, and nothing has been filed in India yet. The founders cannot rely on the six-week route, because that route needs an Indian application on file six weeks before the foreign filing. Their patent agent files a request on Form 25, describing the navigation system in short, naming the United States and the European Patent Office as the intended destinations, and explaining that the lead investor and first customers are in the United States. The Controller processes the request within the timetable Rule 71 sets and grants written permission. The company files the United States provisional, and files in India a few weeks later. Had it filed in the United States first without permission, its Indian rights would have been exposed under section 40 and the founders to prosecution under section 118.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Section 39 applies to residents of India, whoever owns the invention.
- Route one: file in India first and wait six weeks, with no secrecy direction in force.
- Route two: obtain written permission from the Controller on Form 25 with the prescribed fee.
- Say which countries you intend to file in and why you are filing abroad.
- The Controller is to decide within twenty-one days; for defence or atomic energy inventions, that period runs from the Central Government's consent.
- Breach exposes the Indian patent to revocation under section 40 and the person to prosecution under section 118.
Common mistakes and misunderstandings
- Believing a United States provisional application does not count. It is a patent application filed outside India and section 39 applies to it.
- Assuming permission is unnecessary because the invention is software or a business idea with no defence angle. Section 39 is not limited to sensitive technology.
- Thinking only the company matters. Section 39 fastens on residents of India, so an Indian-resident inventor is caught even when a foreign parent is the applicant.
- Applying after the foreign filing has already been made. Permission is prior permission, and a later request cannot cure an earlier breach.
Connected provisions
- ActSection 39Residents not to apply for patents outside India without prior permission
- ActSection 40Liability for contravention of section 35 or section 39
- ActSection 118Contravention of secrecy provisions relating to certain inventions
- ActSection 35Secrecy directions relating to inventions relevant for defence purposes
Rules and sections are cited differently and amended differently. On a rule page the connected sections are therefore kept in a separate list, so that a reader quoting this material can attribute each requirement to the correct instrument.
Forms, deadlines and fees
Any form mentioned here is prescribed by the Second Schedule. Amendments to the Rules often bring new versions of forms with them, so use the version currently published by the Patent Office, not a template from a book or an old file.
- If you rely on the first route, six weeks must pass between the Indian filing and the foreign filing, and no secrecy direction may be in force.
- Rule 71 requires the Controller to dispose of a permission request within twenty-one days of filing; for inventions relevant for defence purposes or relating to atomic energy that period runs from the date consent is received from the Central Government.
- Permission must be in hand before the foreign application is filed. There is no procedure for retrospective permission.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Fees are prescribed in the First Schedule to the Patents Rules. Because the Schedule is revised from time to time, and charges different amounts to different categories of applicant and for physical as against electronic filing, this page describes the fee without stating a figure. 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.
- 2016The Patents (Amendment) Rules, 2016The time within which the Controller must dispose of a request for permission to file an application outside India was shortened.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
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 Rule 71
Do I need permission to file a patent application outside India?
If you are resident in India, yes, unless you take the alternative route. Section 39 allows a foreign filing without permission only where a corresponding application was filed in India at least six weeks earlier and no secrecy direction is in force on it. Otherwise you need written permission from the Controller, requested on Form 25 under Rule 71 with the prescribed fee. This applies to a United States provisional, a full application in any country, and a PCT application filed at a receiving office outside India. It applies to the resident individual, not only to the company.
How long does foreign filing permission take in India?
Rule 71 requires the Controller to dispose of the request within twenty-one days from the date it is filed. If the invention appears to be relevant for defence purposes or relates to atomic energy, the Office must first obtain the consent of the Central Government, and the twenty-one day period is counted from the date that consent is received. In ordinary cases the request is often decided sooner, but you should never build a foreign filing deadline on the assumption of instant clearance. Build in a comfortable buffer before any overseas deadline.
What happens if I filed abroad without permission?
The exposure is serious and it is both civil and criminal. Section 40 makes a patent granted on an application filed in contravention of section 39 liable to be revoked. Section 118 makes contravention punishable, and the punishment can extend to imprisonment as well as a fine. There is no procedure to obtain permission after the event. If you think a breach has occurred, take professional advice promptly on the position of the Indian and foreign filings involved rather than filing anything further on the same invention.
Does section 39 apply to an Indian employee of a foreign company?
Section 39 fastens on a person resident in India, which is why the employment structure does not save you. If the invention was made by an Indian-resident inventor and the foreign parent files first in its home country, the Indian-resident inventor is the person who caused an application to be made outside India. Groups with Indian research and development centres normally deal with this by obtaining permission on Form 25 for each invention, or by filing in India first and observing the six-week gap, as a standing part of their filing policy.
Planning to file your patent abroad first?
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