The term “Resident of India” has not been defined in the Indian Patents Act. However, The Income Tax Act, 1961 defines the term “Resident of India”. Under the Income Tax act, an individual can be termed as a ‘resident’ if he stays for the prescribed period during a fiscal year either for:
- 182 days or more;
- 60 days or more (182 days or more for NRIs) and has been in India in aggregate for 365 days or more in the previous four years.
Any person who satisfies these conditions is termed as a “Resident of India”.
The term “Resident of India” plays an important role while filing a patent application outside India. According to Section 39 [Residents not to apply for patents outside India without prior permission],if the applicant is resident of India but wants to file patent application in foreign country, the applicant should:
- either files application in Indian Patent Office and wait for 21 days to receive any objections.
- or takes permission from Indian patent Office to file patent application in foreign country. Such permission is called as Foreign Filing License (FFL).
Foreign Filing Permission (FFP) or Foreign Filing License (FFL) for making patent application outside India can be made through Form 25 [Request for permission for making Patent application outside India] and the fee applicable is:
- Natural person or Startup or small entity: 1600 INR
- Others, alone or with natural person or start up or small entity: 8000 INR
If a resident of India files a patent application outside India without taking Foreign Filing Permission (FFP), he will be liable to imprisonment or fine under Section 118 [Contravention of secrecy provisions relating to certain inventions].According to this S-118, if any person fails to comply with any direction given under section 35 or makes or causes to be made an application for the grant of a patent in contravention of section 39 he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
Therefore, if you are resident of India, before filing patent application outside India, you mst either file patent application in India and wait for 21 days before you file foreign application or seek FFP or FFL from Indian Patent Office.
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