IP Intelligence › Ask a Question › Can I file abroad first? A section 39 check
Guided answer
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.
Apply for a written permit on Form 25 before filing abroad.
High complexity - significant legal consequences
Please review this with an advocate, patent attorney or registered patent agent before you act. Do not rely on this answer alone.
- Rule 71: the Controller must decide within twenty-one days of the request.
- If the invention is relevant for defence purposes or atomic energy, the permit needs the Central Government's prior consent, and the twenty-one days run from that consent (section 39(2) and rule 71(2)).
- Describe the invention well enough for the request to cover what you will file abroad.
- Keep the permit with the file. Without it, or an Indian filing six weeks earlier, the foreign filing contravenes section 39.
Read next
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.