If you are resident in India and want to file a patent outside India, you must satisfy Section 39 of the Patents Act 1970 before that foreign filing is made, not after. The mechanism is called the Foreign Filing License (FFL) or Foreign Filing Permission (FFP). For most applicants the requirement is met simply by filing in India first and waiting 6 weeks. For those who need to file abroad sooner, written permission is available via Form 25 with a 21-day disposal deadline. Getting either route wrong is not a procedural oversight: the Indian application is deemed abandoned, any granted patent becomes vulnerable to revocation, and penal exposure may arise under Section 118. This article covers who needs a foreign filing license, both routes to satisfy Section 39, the updated 2024 fees, and the specific rules for defence and atomic energy inventions.
What is a Foreign Filing License?
A Foreign Filing License is the written permission granted by the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM) that authorises an Indian resident to file a patent application outside India. Section 39 of the Patents Act 1970 makes this mandatory for any resident of India before filing abroad, regardless of whether they are an individual inventor, a startup, or a large company. The obligation applies to direct national filings, PCT applications from India, and Paris Convention priority filings where the first filing has not yet been made in India.
The rationale sits in national security. Section 39 works in conjunction with Section 35, which gives the CGPDTM the power to impose secrecy directions on applications that touch defence or sensitive technology. The foreign filing license requirement ensures that inventions originating from Indian residents pass through a security clearance window before they are disclosed to foreign patent offices.
Who Needs a Foreign Filing License in India?
The trigger is residential status, not nationality. An Indian national who is resident outside India at the time of filing does not need a foreign filing license. A foreign national who is resident in India does. Section 39 uses the phrase ‘resident in India’ but the Patents Act 1970 does not define it. In practice, advisers commonly assess residency with reference to the Income Tax Act 1961 framework as a conservative compliance benchmark, particularly in cross-border founder and employee situations. Applicants in borderline cases should confirm their position with a registered patent agent before filing.
This catches a specific group that frequently overlooks the requirement: NRI founders who returned to India to build their startup. If they have crossed the residency threshold, the obligation applies to them even if they hold a foreign passport or have co-applicants based abroad. In multi-inventor or multi-applicant situations, if any inventor or applicant is resident in India, the safer compliance approach is to treat Section 39 as engaged before any foreign filing is made. The safest first step for any applicant with a cross-border profile is to confirm residential status before filing a patent application in India or abroad.
Do not rely on nationality alone. Section 39 turns on residence, not passport. An Indian passport holder based abroad is not caught. A foreign passport holder based in India is.
When a Foreign Filing License is Not Required
The principal statutory trigger under Section 39 is residence in India. The express carve-out in Section 39(3) applies where the first application outside India was made by a person resident outside India. Where that condition is met, Section 39 does not apply. The most commonly used practical route, however, is the 6-week window described in the next section — which applies to resident applicants who have first filed in India. For applicants whose filing strategy involves entirely non-resident parties and a foreign-first filing, global IP filing can proceed without engaging Section 39, but the residency position of each applicant should be confirmed before relying on this.
Two Ways to Comply: The 6-Week Route vs. Applying for a Foreign Filing License
Section 39 gives resident applicants two ways to file abroad without committing a violation. The flowchart below shows which route applies in each situation.
Route 1 — the 6-week wait is the default choice for most applicants. File a provisional patent application or complete specification at the Indian Patent Office first, then wait at least 6 weeks from that Indian filing date before filing abroad, provided no secrecy direction has been issued under Section 35 and no direction remains in force. The Indian filing date also becomes the priority date for any subsequent foreign or PCT filing, which is a practical advantage. No Form 25 is required, no fee is payable, and no separate CGPDTM approval is needed: the Indian filing receipt and the date it carries are sufficient.
Route 2 — prior written permission under Section 39(2) is used when the applicant cannot or does not want to file in India first, or when the 6-week window would cause a foreign filing deadline to be missed. The applicant submits Form 25 to the CGPDTM and waits for a written permit before filing abroad. The CGPDTM must dispose of the application within 21 days of receipt under Rule 71 of the Patent Rules 2003. In practice this route costs priority days, which is why Route 1 is preferred whenever the timeline allows.
| PCT applicants filing via RO/IN: |
| For India-resident applicants filing through RO/IN, Section 39 compliance is checked as part of the filing pathway. In practice, the absence of a required foreign filing license can prevent the application from being accorded international filing status through that route. Satisfy Section 39 before submitting the PCT request form, not after. |
How to Apply for a Foreign Filing License: Form 25, Documents, and Fee
Where Route 2 is the chosen path, the application is made using Form 25 (Request for Permission for Making Patent Application Outside India) filed with the appropriate patent office. Form 25 can be filed online through the CGPDTM’s IP India e-filing portal (ipindia.gov.in). The CGPDTM must dispose of the request within 21 days of receipt under Rule 71 of the Patent Rules 2003. The 21-day period is for disposal of the request; it is not an assurance that permission will be granted within that period in every case. The following documents must accompany the form:
- Form 25 with the prescribed fee (see below)
- Disclosure of the invention, including drawings where applicable
- Name and address of each inventor and applicant who is a resident of India
- Name of each country where the application is intended to be filed, and the reason for filing there
- Name and address of any assignee, if applicable
- Power of Attorney if a patent agent is appointed to represent the applicant before the CGPDTM
Fee (Patent Amendment 2024, Entry 41, First Schedule):
- Natural persons, startups, small entities, and educational institutions: ₹1,750
- All others (companies and other entities): ₹8,800
The 2024 amendment updated these figures from the previous ₹1,600 and ₹8,000 respectively. Any Form 25 application filed after the amendment came into force on 15 March 2024 must use the revised amounts.
Defence and Atomic Energy Inventions: Special Rules for Foreign Filing
Where the invention relates to defence or atomic energy, the Section 39(2) proviso creates an additional step: the CGPDTM cannot grant the foreign filing license without the prior consent of the Central Government. The 21-day disposal deadline under Rule 71 does not apply to these applications, so the actual timeline is indeterminate. Applicants working in defence or dual-use technology should build significant lead time into any foreign filing strategy. The 6-week route via a prior Indian filing does not bypass this requirement if a secrecy direction has been issued or is pending under Section 35.
If a secrecy direction is imposed and the applicant believes it is no longer warranted, Section 36 of the Patents Act 1970 provides a recourse: the Central Government is required to reconsider the direction at intervals of 6 months, and the applicant may request an earlier reconsideration if the grounds are reasonable. The Controller must revoke the direction if the Central Government determines that publication would no longer be prejudicial to the defence of India.
Consequences of Filing Abroad Without a Foreign Filing License
Filing abroad without satisfying Section 39 triggers both civil and penal consequences under the Patents Act 1970. Both can apply simultaneously — they are not alternatives.
| Type | What happens | Source |
| Civil | Indian application deemed abandoned; granted patent vulnerable to revocation under Section 64 | Section 40, Patents Act 1970 |
| Criminal | Penal exposure: imprisonment up to 2 years, or fine, or both. In a company, exposure can extend to whoever authorised or directed the filing (Section 124, Patents Act 1970). | Section 118, Patents Act 1970 |
Section 40 states that the Indian application shall be deemed abandoned. That abandonment is stated directly. A granted patent then becomes vulnerable to revocation under Section 64 — revocation is an exposure, not an automatic consequence at the moment the contravention occurs. The penal exposure under Section 118 runs alongside: imprisonment of up to 2 years, or a fine, or both. In a company context, exposure can extend beyond the named inventor to whoever authorised, directed, or caused the foreign filing — Section 124 of the Patents Act 1970 addresses offences by companies specifically.
Frequently Asked Questions
Where any applicant or inventor is resident in India, the conservative compliance approach is to treat Section 39 as engaged before any foreign filing is made. The presence of a foreign co-founder does not remove that obligation. The same applies if the applicant entity is an Indian-registered company — a company incorporated in India is itself treated as resident in India, so Section 39 applies even if every named inventor is based abroad.
Yes, if any applicant or inventor is resident in India and the Indian filing has not been made at least 6 weeks before the PCT filing. For India-resident applicants filing through the Indian Patent Office as Receiving Office, Section 39 compliance is checked as part of the filing pathway. In practice, the absence of a required foreign filing license can prevent the application from being accorded international filing status through that route. Satisfy Section 39 before submitting the PCT request, not after.
No. The 6-week period in Section 39(1)(a) is fixed. Filing abroad before 6 weeks have elapsed from the Indian filing date requires prior written permission via Form 25 under Section 39(2). There is no shortened version of the 6-week route — the only alternative is the Form 25 process.
If none of the inventors and none of the applicants are resident in India, Section 39 does not apply. The Section 39(3) carve-out covers situations where the first application outside India was made by a person resident outside India. However, if the applicant entity is an Indian-registered company, it is treated as resident in India regardless of where its inventors are based, and Section 39 is engaged. Confirm the residency position of every applicant and inventor before relying on this exemption.
No separate permission or Form 25 is required. The Indian application filing receipt showing the filing date is the evidence that the 6-week condition under Section 39(1)(a) has been met. Keep it available at the time of the PCT or foreign filing — the receiving office or foreign patent office may ask for confirmation of the Indian filing date.
The deemed abandonment under Section 40 and the penal exposure under Section 118 are already technically engaged. The immediate step is to get a registered patent agent to assess the full position: whether the 6-week window was in fact satisfied even if no one recognised it at the time, whether any secrecy direction was ever in play, and what the damage control options are. There is no self-correction mechanism or administrative amnesty in the Patents Act 1970. The assessment is legal, not procedural.
The 21-day period under Rule 71 is a statutory disposal deadline for the CGPDTM, not a deemed-grant provision. If no response is received within 21 days, the safest course is not to file abroad and instead file a provisional patent application in India and wait out the 6-week mark under Route 1. Filing abroad on the assumption that silence equals permission is not supported by the Patents Act 1970, and doing so risks the same consequences under Sections 40 and 118 as filing without any permission at all.
Yes. The Madras High Court in Selfdot Technologies (OPC) Pvt. Ltd v. Controller General of Patents confirmed that Section 39 applies to all patent applications filed abroad by Indian residents, including patents of addition. The fact that the original or parent application was first filed in India does not exempt a subsequent related filing from the Section 39 requirement. Each foreign filing must independently satisfy Section 39 before it is made.
Section 39 is a pre-filing obligation, not a post-filing formality. Getting it wrong deems the Indian application abandoned, places the granted patent at risk of revocation, and can expose the applicant and those who directed the filing to penal liability. For applicants with complex residency profiles, defence-adjacent technology, or tight international deadlines, a review with a registered patent agent before the foreign filing date is the only reliable way to confirm the requirement has been properly satisfied.