Sections 39 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 39 is a gatekeeper for Indian residents who want patent protection abroad. A resident cannot make or cause to be made an application outside India for the grant of a patent unless the same invention was first applied for in India at least six weeks earlier and no secrecy direction is in force, or a written permit has been granted by the Controller. Section 40 sets the price of getting this wrong: the Indian application is deemed abandoned and any patent granted is liable to be revoked. Before any foreign filing, a patent drafting and filing plan should settle which route applies.
A person resident in India may not make or cause to be made an application outside India for a patent unless (a) an application for the same invention was made in India not less than six weeks before, and (b) no secrecy direction under section 35(1) was given, or all were revoked, or a written permit was granted by or on behalf of the Controller (39(1)). Permit applications are disposed of within the prescribed period; defence or atomic energy inventions need the prior consent of the Central Government (39(2)). On breach, the Indian application is deemed abandoned and a granted patent is liable to be revoked (section 40).
Section 39(1): the rule
"No person resident in India shall, except under the authority of a written permit sought in the manner prescribed and granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant of a patent for an invention 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has been given under sub-section (1) of section 35 in relation to the application in India, or all such directions have been revoked."
Section 39 was substituted by the 2005 Amendment Act (with effect from 1-1-2005). The structure gives two routes to a lawful foreign application:
| Route | What is required |
|---|---|
| File in India first | An application for the same invention in India not less than six weeks before the foreign application, and either no secrecy direction under section 35(1) or all such directions revoked |
| Permit | A written permit, sought in the prescribed manner and granted by or on behalf of the Controller |
Points to note:
- Who: "No person resident in India". The test is residence in India. The text does not define "resident".
- What: "make or cause to be made any application outside India". The words "or cause to be made" catch an agent or foreign associate filing on the resident's behalf.
- Same invention. The Indian application must be "for the same invention".
- Six weeks. "not less than six weeks before the application outside India". The Act prints this period.
- Secrecy link. The second limb ties the foreign filing to sections 35 and 36: if a direction was given and has not been revoked, the file-first route is not open. See our article on secrecy directions.
The text does not say whether the permit must be sought before the six weeks have passed or whether it replaces the six-week wait. It says only that a permit is the alternative ("except under the authority of a written permit").
Section 39(2): disposal of permit requests and the defence proviso
"The Controller shall dispose of every such application within such period as may be prescribed:
Provided that if the invention is relevant for defence purpose or atomic energy, the Controller shall not grant permit without the prior consent of the Central Government."
- Timing: the Controller disposes of every permit application "within such period as may be prescribed". The Act prints no number.
- Proviso: for an invention "relevant for defence purpose or atomic energy", no permit without the prior consent of the Central Government. For atomic energy inventions see also section 4, covered in our post on inventions relating to atomic energy.
Section 39(3): inventions first filed abroad by a non-resident
"This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India."
Where a person resident outside India has first filed for protection abroad, section 39 does not apply to that invention. The reach of the exemption is limited to inventions first filed outside India by a person resident outside India.
Example. Dr Mehul Joshi, a fictional engineer living in Pune, develops a coolant pump and wants a foreign patent. Route one: he files in India, waits not less than six weeks, confirms that no secrecy direction was given (or that it was revoked), and only then files abroad. Route two: he applies for a written permit and, once the Controller grants it, files abroad. If the pump is relevant for defence purpose, the Controller cannot grant the permit without the prior consent of the Central Government. If Mehul files abroad four weeks after the Indian filing, with no permit, he has acted against section 39(1).
Section 40: liability
"Without prejudice to the provisions contained in Chapter XX, if in respect of an application for a patent any person contravenes any direction as to secrecy given by the Controller under section 35 or makes or causes to be made an application for grant of a patent outside India in contravention of section 39, or the application for patent under this Act shall be deemed to have been abandoned and the patent granted, if any, shall be liable to be revoked under section 64."
The words "or makes or causes to be made an application ... in contravention of section 39" were inserted by the 2002 Amendment Act (with effect from 20-5-2003).
Drafting slip. As printed, the section reads "...in contravention of section 39, or the application for patent under this Act shall be deemed to have been abandoned...". The stray "or" before "the application" makes the sentence grammatically awkward. The meaning is plain from the heading and the structure: on a contravention of section 35 directions or section 39, the application under this Act is deemed abandoned and any patent granted is liable to be revoked under section 64.
Consequences listed:
- The Indian application "shall be deemed to have been abandoned"; and
- any patent granted "shall be liable to be revoked under section 64". Section 64 already has its own post: revocation grounds under section 64.
"Without prejudice to Chapter XX". Chapter XX of the Act contains the penal provisions. Section 118 deals with contravention of the secrecy provisions, including section 39, and is covered in a later article in this series. The Jan Vishwas (Amendment of Provisions) Act, 2026 provides for a further change to section 118 (and to the Chapter's heading); check whether that amendment has been brought into force. We do not state the amended text here.
What these sections do not say
- They do not define "resident in India" or "same invention".
- They do not say how long the Controller may take on a permit beyond "as prescribed", and no figure is given here.
- They do not say what a permit application must contain or cost; that is for the Patents Rules, 2003.
- They do not say what happens to the foreign application; the consequences listed in section 40 relate to the Indian application and patent.
- They do not mention any particular treaty route. Our posts on the Paris Convention route and on PCT filing describe how foreign filings are made in practice; the interaction with section 39 turns on the words "any application outside India".
Need help with ...?
Timing matters here: the six-week gap, the secrecy position and the permit option have to be decided before any foreign filing is made. Our team can help you plan the sequence as part of patent drafting and filing support.
Key takeaways
- A person resident in India may apply for a patent outside India only after filing in India at least six weeks earlier (and with no live secrecy direction), or under a written permit from the Controller.
- Defence and atomic energy inventions need the Central Government's prior consent before a permit.
- The rule does not apply to an invention first filed abroad by a person resident outside India.
- Breach means the Indian application is deemed abandoned and any patent is liable to be revoked under section 64.
Read next
- Section 41 and 42: finality of orders and savings
- Section 37 and 38: consequences of secrecy directions
- Convention application and Paris Convention priority
- Section 118 and 119: contravention of secrecy provisions
Disclaimer: Based on the Patents Act, 1970 as amended up to the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and time limits under the Patents Rules, 2003 change from time to time and are not covered here. This article is general information, not legal advice; check the official text before acting.