Divisional Patent Application in India

The principal purpose of a divisional application is to protect one’s rights if there is more than one invention described in a complete specification. It allows an inventor to divide one of the inventions from his "parent" application into a new complete application without losing his priority rights.

To file a divisional application, one must be the applicant for the parent application and it can be filed any time before the grant of the patent. Moreover, if the parent application discloses several inventions i.e. having lack of unity of the invention, there can be as many divisional applications as one needs to obtain patent protection for all the inventions disclosed. There is no need to remove the claim(s) from the parent application, so long as the parent application claims only one invention. If the parent application and the divisional application both claim the same invention then the Patent Office will grant a patent for only one of the applications.

A divisional application can include any number of changes that an applicant or an inventor makes to the invention. However, if one chooses his application to continue as a divisional application, the parent application must have disclosed all the features of at least one of the claims of the divisional application. Priority date of the claim in a divisional application should be antedated to the priority date of the main invention to restore novelty.

Usually, one needs to consider for applying for a divisional application if the examination report says that his application claims more than one invention. One can choose to respond by deleting the claims to the additional invention or, if one still wants patent protection for it, he can file a divisional application.

U/S 16 of the Indian Patents Act, 1970, a divisional application can be filed under the following circumstances:-

I) It shall be accompanied by a complete specification, but such complete specification shall not include any new matter (inform of claim or description) which was absent in the main invention.
II) A further application along with the complete specification has been filed on the date which predates to the date of the main invention to restore the novelty by virtue of priority.
III) A request for examination must be made within 48 months from the date of filing of the application or from the date of priority of the first mentioned application or within 6 months from the date of filing of the further application whichever is later, along with the complete specification, otherwise it will be considered as abandoned application.

The maximum term of a patent granted on a divisional application is the rest period of the original term of the main invention i.e. calculated from the date of grant of the further application.

Annual maintenance fees are generally due on each anniversary of the filing the parent application. The relevant anniversary date should be checked with appropriate Patent Office. A divisional application is published on the same date as the parent application. If your parent application has already been published, your divisional application will be published immediately.