India: Divide And Patent
How to file a Divisional Patent in India?
The basis of filing a divisional patent application is the existence of a plurality of inventive concepts in the parent patent application.
If in one parent patent application, the patent claims do not relate to a single invention and discloses two or more inventions, the patent law provides the inventor with the opportunity to protect multiple inventions disclosed in one patent to file a further patent application as a divisional patent application.
Applicable Indian Patent Law in context of Filing Divisional Patent Application Filing before Indian Patent Office:
Under Section 16, of the Indian Patent Act,1970 the Patent Controller has the power to make orders in respect of division of parent /main patent application which relates to a plurality of inventions. Section 16 (1) states that:
“A person who has made an application for a patent under this Act may, at any time before the grant of the patent, if he so desires, or with a view to remedy the objection raised by the Controller on the ground that the claims of the complete specification relate to more than one invention, file a further application in respect of an invention disclosed in the provisional or complete specification already filed in respect of the first mentioned application”.
Thus, in order to comply with the Controller’s objection on the ground that the patent claims of the complete patent specification relate to more than one invention, the patent applicant can file for a further patent application in respect of an invention disclosed in the provisional or complete specification already filed at any time before the grant of the patent.
However, the divisional patent application filed should not contain any new matter which was not part of the first patent application filed before the Indian Patent Office.
The divisional patent application claims the priority date of the parent patent application, contains generally the same specification as the parent patent application but has a different set of claims.
The divisional patent application shall be processed and examined when the request for examination is filed within the prescribed period.
The Divisional Patent Application is treated as a substantive Patent application with a separate application number. A divisional application shall be examined vis-à-vis the first mentioned parent patent application so as to avoid patent claim overlap resulting in double patenting.
A divisional patent application is treated as a substantial patent application in the following ways:
a) Patent fee(s) is required to be paid;
b) Separate request for examination requires to be made;
c) Patent will be prosecuted separately;
d) Treated as an independent patent
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