In an important ruling effecting PCT applications in India, the Delhi High Court ruled that an international application (PCT Application) filed by an Indian national with Indian Patent Office is not an application made in India unless appropriate permission under the Patent Act is granted to Indian national by Indian Patent Office.
The Court said, “Under the scheme, such an office [Indian Patent Office] primarily acts as an office which receives such application, gives filing date to it and then transmits its copies to the concerned authorities such as International Bureau and International Searching Authority for further processing. The entire processing thereafter is to be carried out outside India, either by the International Bureau or by the International Searching Authority. Therefore, in my view, the provisions of Section 39 are necessarily attracted to such an application, thereby necessitating a written permit to be granted by the Controller, in terms of Section 39 of the Patents Act.”
The Court also clarified that the international filing will be the date such permission is granted by Indian Patent Office under Section 39 Indian Patent Act.
“Since written permit in terms of Section 39 was a mandatory requirement for such an application, the international application, even if complete in all other respects cannot be given a filing date earlier than the date on which the written permit in terms of Section 39 is issued,” the Court said.