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Procedure for getting a foreign filing license in India

  1. When would a patent applicant be required to seek permission from the Indian Patent Office (commonly referred to as “foreign filing license”) for filing an application outside India?

    A request for foreign filing license has to be filed by the inventor(s) of the claimed invention. An inventor(s) would be required to seek a foreign filing license if he/she qualifies as a “person resident in India” while developing the invention, and if the patent applicant/ inventor(s):

    1. Intends to file a first patent application outside India; or
    2. Has filed a first application in India and intends to file a patent application outside India before the expiry of six weeks from the date of filing of the Indian patent application; and the Controller has not issued directions in the application stating that the application is relevant for defense purposes and that the application shall not be published.
  2. Can a foreign filing license be obtained after filing the application outside India?

    No, the foreign filing license must be obtained before filing the application outside India.

  3. Would a foreign filing license be required even if all inventors are not residents of India?

    Yes, the foreign filing license must be obtained even if a single inventor resides in India.

  4. Who is a “resident in India” for the purposes of obtaining a foreign filing license?

    An individual is said to be a resident in India in any previous year (April 1 – March 31), if he—

    • Is in India in that year for a period amounting in all to one hundred and eighty-two days or more; or
    • Is in India for a period of at least 60 days during the relevant year and at least 365 days during the four years preceding that previous year.

    In other words, if the person is eligible to pay taxes for the previous financial year, then he is a “person resident in India’ for that previous financial year.

    Even if a person resides in India for more than one hundred and eighty-two days during the course of the preceding financial year, he may not be considered a person resident in India if he satisfies one of the conditions below:

    1. A person who has gone out of India or who stays outside India, in either case –
      • For or on taking up employment outside India, or
      • For carrying on outside India a business or vocation outside India, or
      • For any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period.

      Even if a person resides in India for less than one hundred and eighty-two days during the course of the preceding financial year, he may be considered a person resident in India if he satisfies one of the conditions below:

    2. A person who has come to India or who stays in India, in either case,­- for or on taking up employment in India, or
      • For carrying on in India a business or vocation in India, or
      • For any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period.
  5. What documents and information are required to obtain the foreign filing license?

    Following documents and information are required for obtaining the foreign filing license:

    1. Power of Authority from the inventor(s) residing in India
    2. A brief write-up of the invention
    3. In case inventors who are not residing in India are also part of the invention, their details including name and address
    4. In case the inventor has assigned the invention, details of the assignee including name, address
    5. The countries in which the inventor(s)/assignee intends to file the application.

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