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Divisional Patent Application

When an applicant’s patent application claims multiple innovations, the applicant may split the application and submit two or more applications, one for each of the inventions, on his own or in response to an official objection. Divisional is a type of patent application that has been divided from the parent application. All divisional patent applications will have the same priority date as the Parent Application.

A divisional application is treated as a new application, requiring you to pay a filing fee. The parent application and the divisional application are both processed separately.

Time Period for Filing Divisional Application

India, like many other nations that have signed the Paris Convention, permits divisional applications to be filed. The filing of a divisional application is stated under the title “Power of Controller to issue orders regarding division of application,” section 16 of the Indian Patent Act of 1970, as amended in 2005 (“the Act”).

A divisional application may be filed under Section 16(1) of the Act:

  • At any time prior to the approval of the parent application or
  • Within 6 months (extendable by 12 months) after the date of the first examination report stating an objection – lack of unity of invention.

How to file a divisional patent application?

The following must be submitted to the IPO when submitting a divisional application:

  1. Copy of the specification and drawings
  2. Application for grant of patent (Form 1), statement and undertaking (Form 3) and inventor ship (Form 5)
  3. Power of attorney (must be provided within three months of filing date) and
  4. Request for an examination form 18 (can be filed at any time after the parent application’s examination has begun).

A cross-reference to the parent application should also be included in a divisional application. If any changes to the specification or other associated documents are necessary, they must be made in accordance with the legislative provisions of Section 57 of the Act on Form 13.

Examination and Publication of Divisional Applications

In India, a divisional application is filed with its own application number and a reference to the parent application. The time limit for filing a request for examination of a further (e.g., divisional) application is set by Rule 24 B (iv) of the Patent Rules, 2003. A request for such an examination should be submitted in accordance with this rule:

  • within 48 months of the application’s filing date or the priority date of the earliest filed application or
  • within 6 months after the divisional application’s filing date

 

In addition, for a divisional application, Rule 24 B (2)(i) allows for early publication and expedited examination. A divisional patent application submitted under this section is considered in the same sequence as a pending parent application, according to this provision. When a patent application is in the process of being examined, a request for examination should be filed together with the divisional application. In this situation, the divisional application will be published within one month of its filing date and examined within one month of its publication date.

Author By:-

Anamika Manhas