A person resident in India may not file a patent application outside India for an invention without first either filing in India and waiting six weeks, or getting written permission from the Patent Office. That permission is what practitioners call a foreign filing licence — the Act calls it a permit, and the form is Form 25.
The rule exists so the government can check whether an invention touches defence or atomic energy before it leaves the country. In practice it catches far more ordinary inventions than sensitive ones, and it is the single easiest way for an Indian inventor to put a foreign patent at risk without knowing it.
Quick reference
| Who it applies to | Anyone resident in India — not citizens only |
| What it covers | Making, or causing to be made, a patent application outside India |
| Route one | File in India first, wait six weeks, no secrecy direction issued |
| Route two | Written permission on Form 25 before filing abroad |
| Decision time | Twenty-one days — longer for defence or atomic energy |
| PCT | Counts as a foreign filing, even at the Indian receiving office |
| If you skip it | Indian application deemed abandoned; foreign patent open to revocation; criminal offence |
Who is “resident in India”
The Act does not define it, which is unhelpful, and the usual approach is to borrow the income-tax test: broadly, a person who spent 182 days or more in India in the year, or who meets the longer-term presence test. A few things follow from that.
It is about residence, not nationality. A foreign national living and working in India is caught. An Indian citizen who genuinely lives abroad is not.
A temporary posting abroad does not necessarily end residence. An Indian employee seconded overseas for a year may still be resident for this purpose, and if their employer files abroad for their invention, that is an application “caused to be made” by a resident.
It applies inventor by inventor. A foreign company with one inventor in India on a joint project has a Section 39 problem on that inventor’s account, whatever the company’s own position.
Where residence is arguable, the safe course is to treat the person as resident and take the permission. It costs little and removes the question.
The two ways to comply
Route one: file in India first. File an Indian application — provisional will do — and wait six weeks. Provided no secrecy direction has been issued in that time, or any that was issued has been revoked, you are free to file abroad. This is the route most applicants use, and it fits naturally with a priority filing in India followed by convention or PCT filings within the twelve months.
Route two: get permission. Where you want to file abroad first — because the invention was made in a foreign collaboration, because the first filing is being handled overseas, because six weeks is too long — you apply for permission on Form 25 before the foreign filing.
Form 25 is accompanied by a brief description of the invention, which should set out the inventive concept clearly enough for the Office to judge whether it has any defence or atomic-energy relevance. It also asks for the names, addresses and nationalities of the inventors and applicants who are resident in India, the names of any co-inventors abroad, the countries where you intend to file, and the reason for asking.
The Controller must decide within twenty-one days of the request. Where the invention relates to defence or atomic energy, the Office must consult the relevant department first, and the twenty-one days runs from when that consent arrives — which can take considerably longer. Permission is, for ordinary inventions, almost always granted.
The PCT trap
An international application under the PCT is an application outside India, for this purpose, even when it is filed at the Indian Patent Office acting as receiving office. The Office is only receiving it; the application itself is an international one, designating other countries. A resident filing a PCT application first therefore needs either the Indian filing six weeks earlier or a Form 25 permission, exactly as for a direct foreign filing. The Patent Office has refused to give PCT applications a filing date until the permission was obtained, and the courts have upheld it.
If the PCT application claims priority from an Indian application filed at least six weeks before, route one is satisfied and no permission is needed. The trap is the PCT application filed as the first filing.
There is no retrospective permission
The Act provides for permission before the foreign filing. It does not provide for permission afterwards, and there is no established route to have a completed foreign filing regularised. Practitioners have argued that the Controller’s general power to correct irregularities might stretch to it, but there is no decision saying so, and nobody should file abroad on the strength of the argument.
If you discover after the event that a foreign filing was made without compliance, take advice immediately. The position may be recoverable in part, but it needs handling, not hoping.
What happens if you get it wrong
The consequences are in two places, and both are serious.
The Indian application is deemed abandoned, and any Indian patent granted on it is liable to be revoked. The foreign patents may also be attacked in their own jurisdictions on the basis that the priority filing was tainted.
It is a criminal offence. A person who files or causes a filing abroad in breach of the requirement is liable to imprisonment for up to two years, or a fine, or both. When a swathe of patent offences were decriminalised in 2024, this was not one of them. The imprisonment provision stands.
Prosecutions are rare. Revocation attacks and abandoned applications are not, and a competitor’s lawyers will look for exactly this when they go through the file.
Common ways it goes wrong
- An Indian subsidiary’s engineers contribute to an invention and the parent files in its home country first, without anyone asking where the inventors live.
- A startup founder in India files a US provisional directly, because that is what the accelerator suggested.
- A PCT application is filed at the Indian office as the first filing, on the assumption that filing in India is filing in India.
- An Indian researcher on a foreign collaboration is listed as inventor on a foreign filing nobody told them about.
- Six weeks is counted from the wrong date, or a secrecy direction issued in the meantime goes unnoticed.
Every one of these is avoided by the same habit: before any foreign filing, ask where each inventor lives, and if the answer includes India, either file in India first and diarise six weeks, or get the Form 25.
Frequently asked questions
Do I need a foreign filing licence to file a patent abroad from India? If you are resident in India, yes — unless you have already filed an application for the same invention in India at least six weeks earlier and no secrecy direction has been issued. Otherwise you need written permission from the Patent Office on Form 25 before the foreign filing.
How long does a foreign filing licence take in India? The Controller must decide within twenty-one days of the request. Where the invention relates to defence or atomic energy, the Office consults the relevant department first and the twenty-one days runs from when that consent is received.
Does a PCT application count as a foreign filing? Yes, even when it is filed at the Indian Patent Office as receiving office. A resident filing a PCT application as the first filing needs a Form 25 permission; a PCT application claiming priority from an Indian filing made at least six weeks earlier does not.
Who counts as resident in India for this rule? The Act does not define it; the income-tax test is usually applied, so broadly anyone spending 182 days or more in India in the year. It turns on residence, not citizenship — foreign nationals living in India are caught, and an Indian employee temporarily abroad may still be resident.
Can I get a foreign filing licence after I have already filed abroad? The Act does not provide for it, and there is no decision establishing that it can be done. Take advice immediately if a filing has been made without compliance; do not assume it can be regularised.
What is the penalty for filing abroad without a licence? The Indian application is deemed abandoned and any patent granted on it can be revoked, and the person responsible is liable to imprisonment of up to two years, a fine, or both. Unlike several other patent offences, this one was not decriminalised in 2024.
Useful official resources
- IP India — patents — Form 25 and fees
See our related notes on when a foreign filing licence is needed, entering the PCT national phase in India and disclosing your foreign applications on Form 3.
About to file abroad with an inventor in India, or worried a filing has already gone out without permission? Talk to us. The twenty-one days is short; the consequences of skipping it are not.