Section 39 of Indian Patent Act

Residents not to apply for patents outside India without prior permission

Marginal note of this section of Patent Act clearly states that:  No person resident in India can file patent outside India without prior permission of the controller. I.e. every resident of this country needs to apply to controller of patent before filing patent outside the country.

But, as marginal note cannot guide the meaning of the main part of a section (As held in His Holiness Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461,In Para 1407, this clearly goes to state that every resident has either to apply for patent in India or take permission from controller for applying patent outside India.

This image is taken from Here

Moreover, the other conditions are, firstly, It should have been filed in India secondly, if its 6 months prior to the applications filed in India, then it is not necessary to apply to the Controller. And thirdly, there should be no secrecy condition according  to s.35 (1). 

The person seeking permission under section 39 of the Indian Patents Act should approach the controller with the following documents:

1. An application in Form-25 in duplicate;

2. A brief write up of the invention in duplicate;
3. Prescribed Fee under Rule 71(1)

4. Power of Authority (If required)

Under rule 71(2) of the prevailing Indian Patents rules, the permission from the Controller shall ordinarily be issued within 21 days from the date of receipt of request by the Indian Patent office.But in practice, the disposal of foreign filing request within a period of 21 days is strictly not followed due to bureaucratic process followed at Indian patent offices. 

As discussed by my Senior, J.Sai Deepak, rightly in his blog, that for the purpose of "Resident of India", section 6 of the Income Tax Act, where the definition is clearly defined,can be considered for the same purpose, but the implications of the expression, "caused to be made" in section 39 is not defined in the Act, whether it depicts case of multiple inventors, wherein at least one inventor or the company is residing or registered in India, and others from foreign Country.

However, considering the subject matter, permission is mostly granted if it is not found to be relevant for defense or atomic energy or any issues related to security of India.