The provision of foreign filing licence was for the first time introduced by Section 39 of Patents (Amendment) Act, 2002.  No person resident in India shall, except under the authority of a written permit sought in the manner prescribed and granted by or on behalf of the Patent Controller, make or cause to be made any application outside India for the grant of a patent.  The application for a patent for the same invention has been made in India, not less than six weeks before the application outside India;

Section 39 was later amended by the PATENTS (AMENDMENT) ACT, 2005. The legislature increased the ambit of the section 39 in the 2005 amendment to include “any invention” and not just restrict the scope only to inventions related to atomic energy and defense. The amended Section 39 reads as under:

Residents not to apply for patents outside India without prior permission.–(1) No person resident in India shall, except under the authority of a written permit sought in the manner prescribed and granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant of a patent for an invention unless- (a) an application for a patent for the same invention has been made in India, not less than six weeks before the application outside India; and (b) either no direction has been given under sub-section (1) of section 35 in relation to the application in India, or all such directions have been revoked. (2) The Controller shall dispose of every such application within such period as may be prescribed: Provided that if the invention is relevant for defence purpose or atomic energy, the Controller shall not grant permit without the prior consent of the Central Government. (3) This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.”