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Can I file abroad first? A section 39 check
If anyone involved is resident in India, filing outside India first without permission can cost you the Indian application or patent.
Take advice today - a section 39 contravention has serious consequences.
Urgent - a deadline or loss of rights may be close
Please review this with an advocate, patent attorney or registered patent agent before you act. Do not rely on this answer alone.
- Section 40: the Indian application is deemed abandoned, and any patent granted is liable to be revoked under section 64.
- Section 118 provides for punishment. Since the Jan Vishwas (Amendment of Provisions) Act, 2026 (reported in force from 1 June 2026), it does not apply where the Central Government considers the invention was not relevant to defence purposes or atomic energy.
- Do not make further foreign filings until advised.
- Collect the facts: who filed where and when, where each inventor lived at the time, and what the foreign application contains.
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Educational guidance only - not legal advice. Do not rely on it. It cannot see your documents, your dates or the prior art, and those usually decide the answer. Laws, rules, forms, fees and deadlines change. Please review your situation with a qualified advocate, patent attorney or registered patent agent before you act or decide not to act.
Not sure whether this applies to your invention?
The honest answer usually needs someone to look at your actual disclosure, your timeline and the prior art. That is a conversation, not an article.