IP Intelligence › Myths › It does not matter which country I file in first.
Patent myth
“It does not matter which country I file in first.”
For a person resident in India it matters a great deal. Filing abroad first without permission, and without an Indian filing at least six weeks earlier, can lead to refusal or revocation of the Indian patent.
Section 39 is about residence, not nationality. It catches Indian researchers with foreign collaborators and Indian employees of multinationals whose group files in the United States by default. Permission is applied for on the prescribed form and is granted routinely for ordinary subject matter - the failure is almost always that nobody knew to ask. Criminal exposure for ordinary, non-defence subject matter was removed by the Jan Vishwas Act, 2026 with effect from 1 June 2026, but the refusal and revocation risk under section 40 is unchanged.
By the time anyone notices, the foreign filing has already happened.
Sources & further reading
- The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text
- The Patents Rules, 2003, as amended (e-version updated to 15 March 2024) — Official IP India text
Related
Foreign filing permission
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 sa…
Filing abroad first, without permission
A person resident in India may not apply outside India for a patent without written permission from the Controller, unless an application for the same invention was …
Before filing outside India
The twelve-month priority window is effectively immovable, and section 39 catches Indian residents in a way most people never hear about.
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.
Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.