Foreign filing permission

An Indian resident who files abroad first, without permission, can lose the Indian patent entirely - and commit an offence. It is one of the least-known provisions in the Act.

In simple words

A person resident in India may not apply outside India for a patent for an invention without written permission from the Controller, unless an application for the same invention was filed in India at least six weeks earlier and no secrecy direction has been imposed.

Think of it as

File in India first, or ask permission before filing anywhere else.

Why it matters

It bites most often on Indian researchers with foreign co-inventors, and on Indian employees of multinationals whose group files in the United States as a matter of course. The consequences include refusal or revocation of the Indian patent under section 40. Criminal exposure was narrowed by the Jan Vishwas (Amendment of Provisions) Act, 2026, in force for patent provisions from 1 June 2026, which removed criminal punishment for section 39 breaches where the Central Government forms the opinion that the invention was not relevant to defence or atomic energy - but the requirement itself, and the refusal and revocation risk, remain.

A simple example

An Indian-resident inventor working with a US company lets the company file in the USPTO first. Unless permission was obtained or an Indian application preceded it by six weeks, the Indian position is compromised.

Common mistake

Assuming this only applies to defence or atomic energy inventions. It applies generally to residents of India.

Where it comes from

Patents Act 1970, sections 39, 40 and 118; Patents Rules 2003, rule 71 and Form 25