On this page
- Quick answer
- There is no international patent
- Section 39 and who it binds
- What happens if you get it wrong
- Form 25 and Rule 71
- The 12-month clock, and two routes
- The PCT route
- Choosing between Paris and the PCT
- Filing a PCT application from India
- Your Indian application meanwhile
- National phase entry into India
- Choosing countries, honestly
- A worked timeline
- Common mistakes
- How MYCrave can help
A Bengaluru founder closes a US seed round in March. The investor's counsel wants a US provisional on file before the announcement, so a US firm drafts one and files it in April. The Indian application follows in September, once there is budget for it.
Nothing about that sequence feels wrong. It is a contravention of Section 39 of the Patents Act, 1970 — and the price is in Section 40: the Indian application is deemed abandoned, and any patent that issues is liable to be revoked.
This guide covers the permission you need before filing outside India, the two routes to protection abroad, what a PCT application actually buys, and how the Indian national phase works on the way back in.
Quick answer
If you are resident in India, you may not file a patent application outside India unless one of two things is true: the Controller has granted written permission on Form 25 under Section 39 read with Rule 71, or you filed an application for the same invention in India at least six weeks earlier with no secrecy direction under Section 35 in force.
Once clear to file abroad, you have 12 months from your priority date (Paris Convention, Article 4) to file either country by country or as a single PCT international application. The PCT does not grant a patent. It defers the country decision and the country costs to 30 or 31 months from priority. India's own national phase deadline is 31 months under Rule 20(4)(i), and it cannot be extended.
There is no such thing as an international patent
A patent is a national right, granted by a national or regional office, enforced in national courts, and kept alive by that country's annuities. WIPO puts it plainly: under the PCT, "the granting of patents remains under the control of the national or regional patent Offices."
The Patent Cooperation Treaty gives you a single application, filed once, in one language, with one set of fees, having the effect of a regular national filing in every one of its Contracting States — 159 of them, the Bahamas being the most recent to join in 2026. It also gives you a professional search, a written opinion on patentability, and roughly eighteen extra months before you must name countries and pay for them. It does not give you a patent anywhere.
If someone quotes you for "an international patent", ask what they mean.
Section 39 and who it binds
Section 39 is headed "Residents not to apply for patents outside India without prior permission", and its opening words do the work: no person resident in India shall make or cause to be made any application outside India for the grant of a patent, except under the authority of a written permit granted by or on behalf of the Controller, unless —
- (a) an application for a patent for the same invention has been made in India not less than six weeks before the application outside India; and
- (b) either no direction has been given under Section 35(1) in relation to that Indian application, or all such directions have been revoked.
Three features of that sentence decide most real cases.
It turns on residence, not nationality. The Act says "resident in India", not Indian citizen. A German engineer working out of a Pune R&D centre is inside Section 39; an Indian citizen who has lived in Toronto for a decade may well be outside it. That catches multinationals with Indian development teams — and it catches the returning NRI who is resident here when the invention is made.
"Resident in India" is not defined in the Patents Act. No rule supplies a definition, and we have found no Indian judgment fixing a test for patent purposes. Practitioners reason by analogy to the residence tests in the Income-tax Act or FEMA — convenient, but not authoritative. Where the answer is close, get advice before you file.
Section 39(3) is narrower than people think. It disapplies Section 39 for an invention for which an application for protection has first been filed in a country outside India by a person resident outside India — a carve-out for foreign-origin filings, not a general exemption for inventions made abroad. If your Indian-resident inventor is named on an application first filed by a US parent, whether 39(3) rescues you is fact-specific and contested.
A PCT application filed at the Indian Patent Office still counts as an application "outside India". The Delhi High Court decided this in Puneet Kaushik & Anr. v. Union of India (W.P.(C) 1631/2013, 23 September 2013): the IPO acts only as a receiving office and transmits copies abroad, so a Section 39 permit is mandatory. The petitioners lost thirteen days of filing date — the Court fixed the international filing date at the date permission was granted.
What happens if you get Section 39 wrong
Three consequences, operating independently of each other.
| Provision | Consequence | Who can invoke it |
|---|---|---|
| Section 40 | The corresponding Indian application is deemed to have been abandoned, and any patent granted on it is liable to be revoked | Operates by law; the Office records it |
| Section 64(1)(n) | Contravention of Section 39 is a standalone ground of revocation of a granted patent | Any person interested, or the Central Government — typically an infringement defendant |
| Section 118 | Criminal liability: imprisonment up to two years, or fine, or both | Prosecution |
Section 64(1)(n) should worry any company with a portfolio, because it sits there for the life of the patent. The moment you sue an infringer, or a buyer's counsel runs due diligence, a foreign filing that predates your Indian one by less than six weeks becomes a live revocation argument.
A word on Section 118, and a reported change we cannot confirm. The text of Section 118 published by IP India, read on 20 August 2026, is the unamended provision in the table above: imprisonment up to two years, or fine, or both. Separately, two practitioner notes report that the Jan Vishwas (Amendment of Provisions) Act, 2026 — assented 7 April 2026 — inserted a proviso into Section 118 with effect from 1 June 2026, disapplying the punishment where, in the opinion of the Central Government, the invention was not relevant to defence purposes or atomic energy at the time of the contravention. We could not verify that proviso against the Gazette or any government source, so this guide states the unamended position and does not rely on the reported change. Either way the point that matters for your file is the same: Sections 39, 40 and 64(1)(n) are untouched. A relaxation of the criminal provision would remove a jail sentence, not a defect.
Can a past breach be cured? Sometimes. Firms have filed retrospective Form 25 requests with a petition explaining the circumstances, and at least one has been reported as regularised. There is no statutory amnesty and no guarantee — but a documented, promptly filed request beats silence.
Form 25 and Rule 71
When you cannot wait six weeks, or you have not filed in India at all, Form 25 is the route.
Rule 71(1) requires the request to be made in Form 25. It asks for the title of the invention, the name and address of the applicant and any assignee, a brief description of the invention, the countries where the application is proposed to be made, and the reasons for making the application outside India. A short form, not a patent specification.
Rule 71(2) gives the Controller twenty-one days to dispose of the request. Where the invention relates to defence or atomic energy, those days run only from the date the Central Government's consent is received — and Section 39(2) forbids the permit without that consent.
| Form 25 request | Natural person / startup / small entity / educational institution | Others |
|---|---|---|
| E-filing | ₹1,600 | ₹8,000 |
| Physical filing | ₹1,750 | ₹8,800 |
Government fees only, from the First Schedule to the Patents Rules, exclusive of professional fees and taxes.
Use Form 25 rather than the six-week route when a foreign deadline lands inside six weeks of your Indian filing, when a co-applicant abroad is filing on a schedule you do not control, or when the foreign application will contain matter your Indian filing does not. That last one matters: the six-week route protects you only for the same invention.
The 12-month clock, and the two routes
Article 4 of the Paris Convention gives you twelve months from your earliest priority date to claim priority in another Convention country. Miss it and you have not lost the invention, but you have lost the priority date — and everything published in the intervening year, including your own disclosures, becomes prior art against you.
India has notified WIPO that it does not apply PCT Rule 26bis.3, which lets a receiving office restore a priority right lost by a short delay, so RO/IN will not restore. It has also notified incompatibility with Rules 49ter.1 and 49ter.2, so a restoration granted by another receiving office has no effect in India. Twelve months means twelve months.
Route one — Paris Convention direct filing. You file separately in each country within twelve months, each with its own agent, translation, claims format and fees. Right when you know your markets, the list is short and you want grants quickly: there is no international stage to sit through, so examination starts earlier. The cost of that speed is that the whole bill lands at month 12, and the country list must be final then.
The PCT route
One application, filed once, and the country decision deferred.
| Stage | When | Provision |
|---|---|---|
| File the international application | By 12 months from priority | Paris Convention Art. 4 |
| International search report and written opinion | 3 months from the ISA receiving the search copy, or 9 months from priority, whichever is later | PCT Rule 42.1 |
| Priority document furnished to the International Bureau | 16 months from priority | PCT Rule 17.1(a) |
| International publication | Promptly after 18 months from priority | PCT Art. 21 |
| Optional Chapter II demand | 22 months from priority, or 3 months from transmittal of the search report, whichever is later | PCT Rule 54bis.1(a) |
| International preliminary report on patentability | Broadly 28 months from priority | PCT Rule 69.2 |
| National or regional phase entry | 30 or 31 months from priority | PCT Arts. 22, 39(1) |
Two things here are undervalued. The written opinion is a reasoned patentability assessment from an examining authority, delivered around month 9 to 16 — early enough to change your claims, your budget or your mind before you spend on ten countries. And international publication at 18 months turns the application into citable prior art worldwide, a defensive asset even for an invention you drop. That publication is not optional, though: afterwards the disclosure is public everywhere.
Which offices give you 31 months rather than 30 is not intuitive, and worth checking early.
| 30 months from priority | 31 months from priority |
|---|---|
| United States, Japan, China, Brazil, Singapore, Canada, UAE | India, European Patent Office, Australia, Republic of Korea, United Kingdom, Germany, South Africa |
Confirm the current position for each target office before you diarise it; a handful allow late entry on a surcharge and others do not.
Choosing between Paris and the PCT
| Paris Convention direct | PCT | |
|---|---|---|
| When countries must be chosen | Month 12 | Month 30 or 31 |
| When country costs are incurred | Month 12, all at once | Deferred to national phase |
| Upfront cost at month 12 | Higher — every country's fees, agent and translation | Lower — one filing fee, one search fee, one transmittal fee |
| Countries realistically covered | Few, because each costs money at month 12 | Any of 159, decided later |
| Speed to grant | Faster | Slower by roughly 18 months |
| Patentability signal before you commit | None beyond your own search | International search report and written opinion |
| Best when | Two or three known markets, a licensing or enforcement deadline, budget available now | Markets not yet proven, funding round pending, or more than three or four countries in view |
The honest rule of thumb: if you can name your countries today and there are fewer than four, Paris is often cheaper overall. If you cannot name them, the PCT is buying the only thing that helps — time to find out.
Filing a PCT application from India
Receiving office. An Indian national or resident may file at the Indian Patent Office (RO/IN), which accepts English or Hindi, or directly at WIPO's International Bureau (RO/IB).
International Searching Authority. From RO/IN you may elect any of eight: the Indian Patent Office, the EPO, the USPTO, the JPO, CNIPA, IP Australia, the Austrian Patent Office or the Swedish office. Some carry conditions — the EPO acts as preliminary examining authority only where the search was carried out by the EPO, Austria or Sweden. Check Annex C of the PCT Applicant's Guide before electing. The ISA choice is the biggest single swing in your international-stage bill.
| Fee | Amount | Notes |
|---|---|---|
| Transmittal fee, RO/IN, e-filing | ₹3,200 / ₹16,000 | First Schedule. No fee where filed through ePCT |
| International filing fee, first 30 sheets | CHF 1,330 (USD 1,667 at RO/IN) | Plus CHF 15 (USD 19) per sheet over 30 |
| Electronic filing reduction | CHF 100 / 200 / 300 | Depends on the electronic format used |
| Search fee — ISA/IN | ₹2,500 natural person, startup, small entity or educational institution; ₹10,000 others | |
| Search fee — ISA/EP | EUR 1,885 (CHF 1,734) | |
| Search fee — ISA/US | USD 2,400 | |
| Search fee — ISA/CN | CNY 2,100 (CHF 235) | |
| Handling fee (Chapter II) | CHF 200 | Only if you file a demand |
WIPO amounts as published in the PCT Fee Tables stated current on 1 August 2026; Indian amounts from the First Schedule. Government and international fees only.
Read that search-fee block again. ISA/IN and ISA/EP are separated by more than an order of magnitude. Cheap is not automatically right — an EPO report is the most respected of the eight and often smooths the European regional phase — but for an applicant whose real markets are India, the US and Southeast Asia, EPO rates buy very little.
The 90% reduction, and who actually gets it. WIPO cuts the international filing fee (including per-sheet charges), the handling fee and the supplementary search handling fee by 90% for applicants from listed states, and India is on the list. The condition disappoints most readers: for India it is confined to a natural person who is a national of and resides in India. A private limited company does not qualify, however small, and nor does a DPIIT-recognised startup as a startup. With joint applicants, each must satisfy the criteria.
So an individual inventor filing in her own name pays roughly a tenth of the international filing fee; the same invention filed by her company pays it in full. Worth a conversation about who the applicant should be — bearing in mind that assigning to the company later carries its own tax and due-diligence consequences, and that the Indian reduced-fee category works on entirely different criteria.
Your priority document. If your PCT claims priority from an Indian application, the International Bureau needs a certified copy by 16 months. The IPO will prepare and transmit one for ₹1,000 (₹5,000 for others) up to 30 pages, or transmit it through WIPO DAS at no fee. Use DAS.
Your Indian application while the PCT runs
If your priority filing was an Indian provisional, Section 9(1) requires a complete specification within twelve months or the Indian application is deemed abandoned — the same day as your PCT deadline. Two patterns work. The provisional versus complete decision is worth settling before either.
Pattern A — Indian complete plus PCT. File both at month 12, claiming priority from the provisional. You get an Indian application that starts examination now and a PCT for everywhere else. Do not also enter the Indian national phase later; you would end up with two Indian applications for the same invention.
Pattern B — PCT only. File only the PCT at month 12 and let the Indian provisional lapse. Priority survives through the PCT, and you re-enter India through the national phase at month 31. Cheaper and later, and it keeps the country decision in one place. The cost is nineteen months of delay on your home market.
Either way, once you have foreign counterparts, Section 8 bites: Rule 12(2) requires you to update the Controller on corresponding foreign applications within three months of the first examination report, a window that closes well before your FER reply is due.
National phase entry into India
For an international application designating India, Rule 20(4)(i) sets the deadline at 31 months from the priority date. Before it expires you must file Form 1 with the international application particulars, pay the prescribed fee, and — where the application was not filed or published in English — file a verified English translation of the description, claims, any text in drawings and the abstract.
Now the part that catches people.
The deadline is not extendable. Rule 137(2) expressly places Rule 20(4)(i) outside the Controller's general power to correct irregularities, alongside Rule 21 and Rule 24B(1), (5) and (6).
PCT reinstatement does not save you. India has notified WIPO of incompatibility with Rule 49.6(f), so the PCT's reinstatement-of-rights mechanism does not apply here. The Delhi High Court reasoned exactly this way in Humanity Life Extension LLC v. Union of India (2023), holding a national phase application filed 25 days late irretrievable.
Nor, on the face of the Rules, does agent negligence — or redrawing the priority date. Where an application claims several priorities, the clock runs from the earliest, so an applicant who later tries to disclaim an early priority in order to recalculate the deadline is asking for something the Rules do not offer: an application already deemed withdrawn by operation of law is not there to be amended, and an amendment sought purely to extend a non-extendable period does indirectly what cannot be done directly.
Indian courts have shown sympathy to applicants let down by their agents at the FER reply stage, where Rule 138 and the Controller's discretion leave room for it. Rule 137(2) takes that room away at national phase.
And the 2024 amendment made it tighter. For applications filed on or after 15 March 2024, Rule 24B(1) requires the request for examination in Form 18 within 31 months of the earliest priority date, down from 48. For a national phase application entering India at month 31, that request falls due on essentially the same day as entry. The old eighteen-month cushion is gone. File Form 18 with the national phase papers.
Choosing countries, honestly
This is a commercial decision wearing legal clothing. Five questions, in this order:
- Where do you manufacture? A patent where your plant sits stops a copyist supplying your own market from your own doorstep.
- Where will you sell, in revenue terms, three years out? Not where you hope to sell — where your pipeline says you will.
- Where do your competitors manufacture? Often the most valuable filing on the list, and the one nobody proposes. A freedom-to-operate analysis usually surfaces this before the filing decision does.
- Where can you realistically enforce? A patent you will never fund a suit on is a renewal bill with a certificate attached.
- What does each country cost over twenty years? Filing, translation, local agent, examination and rising annuities. Translation into Japanese, Chinese, Korean or the European validation languages routinely costs more than the filing itself.
Filing in ten countries is usually a worse decision than filing well in three: ten thin filings dropped at year six when the annuities arrive protect nothing. And sometimes the honest answer is not to file abroad at all.
A worked timeline
Hypothetical. A Coimbatore machinery startup, incorporated as a private limited company, files an Indian provisional in month 0.
| Month | What falls due |
|---|---|
| 0 | Indian provisional filed. Section 39 clock starts |
| 1.5 | Six weeks elapsed with no Section 35 direction — free to file abroad on the same invention |
| 6 | Patentability search and market review. Decide Paris or PCT |
| 9–16 | International search report and written opinion — the first real signal on patentability |
| 12 | Hard deadline. File the Indian complete and/or the PCT. Elect the ISA. Enable WIPO DAS |
| 16 | Priority document must be with the International Bureau; automatic if DAS is enabled |
| 18 | International publication. The disclosure is public worldwide |
| 22 | Chapter II demand deadline, if you want amendments and examiner dialogue first |
| 30 | National phase deadline in the United States, Japan, China, Brazil, Singapore |
| 31 | National phase deadline in India, the EPO, Australia, Korea, the UK. Form 18 also due in India that day |
Note what is not on that list: any point after month 31 at which an Indian mistake can be fixed.
Common mistakes
- Filing the US provisional first because an investor asked for it. The commonest Section 39 breach, and the most expensive, because it poisons the Indian application at the root
- Reading Section 39 as a nationality rule. An Indian passport abroad does not bring you in; a foreign passport in India does not keep you out
- Assuming Section 39 is satisfied because the PCT papers went to an Indian office. Puneet Kaushik says otherwise
- Diarising the Indian national phase at 30 months, or the request for examination at 48. Both are 31, and they fall on the same day
How MYCrave can help
MYCrave Consultancy & Services handles international and PCT filing end to end, and the route decision sits at the front of it. Prosecution is led by a Registered Patent Agent (No. 5509). On a foreign filing matter, that means concretely:
- A Section 39 clearance before anything is filed abroad — residence assessment for every inventor and applicant, the six-week calculation, and Form 25 where the timing does not work
- Route analysis — Paris against PCT on your actual market list, funding position and speed-to-grant needs, with the cost of each set out separately
- ISA selection matched to where you intend to prosecute, not to the cheapest line on the fee table
- The international stage run properly — filing at RO/IN or RO/IB, DAS enabled, a Chapter II demand where it earns its cost, and 18-month publication planned for rather than discovered
- National phase management — country instructions, verified translations, and a docket that treats month 31 as immovable, including inbound entry into India for overseas counsel
Where a filing has already gone abroad without a permit, the first step is an assessment of whether a retrospective Form 25 request is worth making on your facts. Not every file supports one, and it is better to know now than during an infringement suit.
Before you file anywhere
Two dates decide most of this. Six weeks after your Indian filing you are free to go abroad. Twelve months after your priority date you must have chosen a route. Everything after month 31 is unfixable.
So do three things before the next filing goes out: check where every inventor was resident when the invention was made, count six weeks from your Indian filing date, and put months 12, 30 and 31 in a calendar somebody other than your agent controls.
Frequently asked questions
I am an Indian citizen living in Dubai and I invented this there. Does Section 39 apply to me?
Can I add countries after the 30 or 31 month deadline?
Does my company get the 90% WIPO fee reduction?
Is there anything like Section 39 for trademarks or designs?
We filed abroad first by mistake. Is there anything we can do?
Planning to file abroad, or worried you already have without permission? Talk to a MYCrave IP expert. Free initial consultation, complete confidentiality.
Book a ConsultationAbout this guide
- The Patents Act, 1970 — Sections 8, 9, 35, 39, 40, 57, 64(1)(n) and 118
- The Patents Rules, 2003 as amended by the Patents (Amendment) Rules, 2024 — Rules 12, 20, 21, 24B, 71, 137, 138 and the First Schedule
- Paris Convention, Article 4; Patent Cooperation Treaty and Regulations — Articles 21, 22 and 39(1); Rules 17.1, 26bis.3, 42.1, 49.6, 49ter, 54bis.1 and 69.2
- WIPO PCT Fee Tables, the list of States entitled to the 90% fee reduction, and the PCT Applicant’s Guide, Annex C (IN)
Rupee figures are government fees only, from the First Schedule, current on the review date. WIPO and ISA figures are official fees in the currencies WIPO publishes, stated current on 1 August 2026. All exclude professional fees and taxes. Fees and exchange rates change; confirm before filing.