It was cleared in this case that, while it is necessary to obtain a foreign filing license in order to file an application under PCT by a person resident in India, it is also important to note that an application made under PCT should not be considered as an “Indian filing”, if the PCT application is filed with Indian Patent Office as a receiving office. This was further cleared by Delhi High Court in the case filed against the Union of India by Mr. Puneet Kaushik. Mr. Kaushik had filed a PCT application on 14 September 2012 with Indian Patent Office as a receiving office coupled with Form-25 for obtaining foreign filing license for the same application.
The patent office granted foreign filing license on 27th September 2012. Mr. Kaushik claimed that the international filing date should be 14 September 2012. However, the court did not approve of this and held that the international filing date would be 27th September 2012, the date on which foreign filing license was granted. The court also pointed out that had the applicant filed the application first in India, then after 6 weeks filed a patent application for the similar invention outside India, then, in that case, the backdating would have been accorded to the applicant as an international filing date.