The Delhi High Court held that an international application (PCT Application) filed by an Indian resident with Indian Patent Office is not an application made in India unless appropriate permission under the Patents Act is granted to Indian resident by Indian Patent Office.
Upholding the ruling by a single judge of the Court, a Division Bench said, “….the legal consequences flowing from a PCT application filed in the Indian Patent office are that of an application filed outside India. The Receiving office is only empowered to assure that a PCT application is in conformity with all the prescribed documents under the treaty. All further processing is done by the International Bureau and the International Searching Authority.”
The Court said that Section 39 is to apply to such PCT application. The Respondent office could not have accepted an application without the requisite permission simply owing to the fact that Section 39 bars such application to be made.
On the issue of what would be the international filing date, the Court said that if the appellant had adopted the course of first filing an Indian application for patent and on expiry on six weeks an international application were to be filed, then the international filing date would have dated back to the date when the Indian application was made.
However, if applicant requests the Controller for written permission to file an international application then the international filing will be the date such permission is granted by Indian Patent Office under Section 39 Indian Patent Act.