DIVISIONAL PATENT – NEW INSIGHT FROM INDIA
A divisional patent application is a type of patent application that arises when a patent office identifies that a single patent application covers more than one invention. In such cases, the patent office may require the applicant to divide the original application into multiple applications, each directed to a separate invention. This divisional application retains the priority date of the original application and allows the applicant to pursue protection for the different inventions separately.
Relevant Section in the Indian Patents Act:The relevant section in the Indian Patents Act that addresses divisional applications is Section 16. Section 16 allows the Controller of Patents to require an applicant to divide the original patent application into multiple applications if it covers more than one invention.
Here is an overview of how divisional applications work under Section 16: 1. Section 16 (1):"Where, in respect of an application for a patent, it appears to the Controller that the application relates to more than one invention, he may require the applicant to limit the application to one invention."
2. Section 16 (2):"If the applicant fails to do so within the prescribed period, the Controller may refuse the grant of the patent."
How Divisional Applications Work:
1. Identification of Multiple Inventions:During the examination process, the Controller may identify that the original patent application covers more than one invention.
2. Requirement to Limit the Application:The Controller, in accordance with Section 16, may require the applicant to limit the application to one invention.
3. Response by the Applicant:The applicant has the option to comply with the requirement by selecting one of the inventions and limiting the claims accordingly. Alternatively, the applicant may choose to file divisional applications for the other inventions.
4. Filing of Divisional Application:If the applicant decides to file a divisional application, the divisional application will be treated as a separate application but will retain the priority date of the original application.
5. Prosecution of Divisional Application:The divisional application will undergo its own examination process and must meet the patentability requirements independently.
6. Independent Patent:If granted, the divisional patent becomes an independent patent with its own set of claims, specifications, and drawings.
Benefits of Divisional Applications:
Preservation of Priority: Divisional applications allow the preservation of the priority date of the original application.
Separate Examination: Each divisional application is examined independently, allowing for a more focused examination process for each invention.
Example:If a patent application originally covers two unrelated inventions (A and B), the Controller may require the applicant to divide the application. The applicant can then choose to proceed with a divisional application specifically directed to invention A while filing a separate divisional application for invention B.
Divisional applications are a useful mechanism to handle situations where a single patent application encompasses more than one distinct invention, providing flexibility for the applicant to pursue protection for each invention separately.
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