A foreign filing license in India is written permission from the Controller to file a patent application abroad. Under Section 39 of the Patents Act, 1970, a person resident in India may not file outside India unless the same invention was first filed in India at least six weeks earlier, or the Controller has granted permission on Form 25. Get it wrong and the Indian application is deemed abandoned, any patent is liable to revocation, and the breach is a criminal offence.
Of all the requirements in Indian patent practice, this is the one most often breached by people who had no idea it existed. It catches Indian inventors working for foreign employers, founders who file a cheap US provisional before speaking to anyone, and research teams whose collaborator abroad files first. By the time it surfaces — usually during due diligence or at examination — the damage is already done.
What Section 39 actually says
Section 39(1) prohibits a person resident in India from making, or causing to be made, any application outside India for a patent, unless one of two conditions is met:
- An application for the same invention has been made in India not less than six weeks before the foreign application, and no secrecy direction under Section 35 is in force in respect of it; or
- The Controller has granted written permission to file abroad.
Section 39(3) carves out the obvious case: the section does not apply where the invention was first filed outside India by a person resident outside India. A foreign applicant with no Indian-resident inventor has nothing to worry about here.
Two words in the section do most of the work. “Resident in India” is not defined in the Patents Act, and in practice attaches to the individual inventor rather than to the applicant company. And “causing to be made” means you do not have to be the applicant to breach it — an Indian-resident inventor whose foreign employer files the application abroad has caused that application to be made.
When you need a foreign filing license in India
The four situations we see most often:
- The Indian inventor with a foreign employer. A US or Singapore parent files a provisional at home, naming an engineer based in Bengaluru as inventor. No Indian filing, no permission. This is the single most common breach.
- The founder who files a US provisional first because it is cheap and fast, intending to “sort out India later”.
- The academic collaboration where the overseas institution handles filing and no one asks where the co-inventors live.
- The startup told by a foreign attorney to file in the United States first, on advice that never considered Indian law.
Note what is not a defence: that the invention has nothing to do with defence or atomic energy, that the Indian inventor was a minor contributor, or that nobody intended any harm. Section 39 is a filing-order rule, not a subject-matter rule.
The two routes to compliance
Route 1 — file in India first, then wait six weeks
File a provisional or complete specification in India, wait six weeks, and provided no secrecy direction has issued you may file anywhere. This is the default route and costs nothing beyond the Indian filing you were probably going to make anyway. It suits any applicant who intends to protect the invention in India regardless.
The six weeks is a hard minimum, counted from the Indian filing date to the foreign filing date. There is no mechanism to shorten it, so if a foreign deadline is closer than six weeks away, this route is closed and you need Route 2.
Route 2 — apply for the license on Form 25
Where you do not want to file in India at all, or cannot wait six weeks, request permission under Rule 71 on Form 25. The request sets out the invention, the applicant and inventors, the countries in which you propose to file, and the reason permission is sought.
| Item | Natural person · startup · small entity | Other applicants |
|---|---|---|
| Form 25, e-filing | ₹1,600 | ₹8,000 |
| Form 25, physical filing | ₹1,750 | ₹8,800 |
Under Rule 71(2) the Controller must dispose of the request within 21 days of filing. Where the invention relates to defence or atomic energy, those 21 days run instead from the date the Central Government’s consent is received — so build in considerably more time if your invention sits anywhere near those fields.
In practice, permission is granted routinely for ordinary subject matter. The delay, when it happens, is administrative rather than substantive.
What happens if you get it wrong
Section 40 sets out the consequence, and it is severe. Where an application is made outside India in contravention of Section 39:
- the Indian application for the same invention shall be deemed to have been abandoned; and
- any patent already granted on it is liable to be revoked under Section 64(1)(n).
Separately, Section 118 makes the contravention a criminal offence, punishable with imprisonment of up to two years, a fine, or both. Prosecutions are rare. Revocation risk is not: it is a standing ground of attack that any opponent, defendant or acquirer’s counsel can raise years later, and it does not go away with time.
For a funded company, the practical damage usually arrives in diligence. A Section 39 defect on a core patent is exactly the kind of finding that reprices a round or holds up an acquisition, because the buyer cannot be told the risk has been cured — there is no statutory cure.
The PCT question
This trips up even experienced teams. An international application under the Patent Cooperation Treaty is still an application, so the question is where you file it.
Filing a PCT application with the Indian Patent Office as receiving office is an application made in India, and Section 39 is satisfied. Filing the same PCT application with a foreign receiving office — the International Bureau, the EPO, the USPTO — is an application made outside India, and an Indian-resident inventor needs either the six-week route or a Form 25 permission first.
The choice of receiving office is often made by a foreign associate for convenience, without anyone flagging the Indian residence of an inventor. If you are working through the PCT, our guides to the Patent Cooperation Treaty and national phase filing into India set out the wider route, and the PCT national phase deadline calculator gives you the entry dates.
If you have already filed abroad without permission
Do not paper over it. There is no express provision in the Act for retrospective permission, and no formal condonation route, so anyone promising you a clean cure is overstating the position.
What can be done is fact-specific: establishing whether the inventor was in fact resident in India at the relevant date, whether an Indian application predated the foreign one by the required period, whether the foreign filing was made or caused to be made by that person, and what disclosure the position now requires. Those questions decide how exposed the portfolio really is, and they are worth answering before a buyer or an opponent answers them for you.
Frequently asked questions
Do I need a foreign filing license if I file in India first?
No — you do not need a foreign filing license in India provided the Indian application for the same invention was filed at least six weeks before the foreign application, and no secrecy direction under Section 35 is in force. If the gap is shorter than six weeks, you need permission on Form 25.
How long does a foreign filing license take in India?
Rule 71(2) requires the Controller to dispose of a Form 25 request within 21 days of filing. For inventions relating to defence or atomic energy, the 21 days run from the date the Central Government’s consent is received, which can extend the timeline substantially.
Does Section 39 apply if the applicant is a foreign company?
It can. The section binds a person resident in India who makes or causes to be made an application outside India. An Indian-resident inventor whose foreign employer files abroad falls within it, whatever the applicant’s nationality. The residence that matters is the inventor’s, not the company’s.
What is the penalty for filing abroad without a foreign filing license?
Under Section 40 the corresponding Indian application is deemed abandoned and any patent granted on it becomes liable to revocation under Section 64(1)(n). Section 118 additionally makes the contravention a criminal offence carrying up to two years’ imprisonment, a fine, or both.
Do I need permission to file a PCT application?
Only if you file it outside India. A PCT application filed with the Indian Patent Office as receiving office is an application made in India and satisfies Section 39. One filed with a foreign receiving office does not.
Can the six-week period be shortened?
No. The six weeks is a statutory minimum measured from the Indian filing date. If a foreign deadline falls inside that window, the only compliant route is a Form 25 permission.
Before you file anywhere
The order in which you file decides whether your Indian rights survive. If any inventor is resident in India, settle the Section 39 position before the first foreign application goes in — not afterwards, when the options narrow to damage assessment.
Send us the inventor list, their locations and your intended filing countries, and we will confirm within 24 hours which route applies, whether Form 25 is needed, and the order to file in. For the wider process, see our complete patent filing guide for India, and for the official fees at every stage, the Indian patent fee calculator.
Sources
- The Patents Act, 1970 — Sections 35, 39, 40, 64(1)(n) and 118.
- The Patents Rules, 2003 — Rule 71 (request on Form 25; 21-day disposal).
- First Schedule, Patents Rules, 2003 — entry 41, fee for permission under Section 39.
This article is general information on Indian patent procedure and is not legal advice. Residence, inventorship and filing dates are fact-specific and decide the outcome. Confirm your position with a registered patent agent before filing abroad, or before deciding not to.