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Divisional applications (Section 26(11)/Rule 27)

6.89 According to Section 26(11) and Rule 27, an applicant can file a new application for a patent in respect of any part of the matter contained in the originally filed application, i.e., parent application, where the new application, i.e., divisional application, shall be treated as having, as its date of filing, the date of filing of the earlier application. The said new application must not contain any additional matter extending beyond that disclosed in the original application to satisfy the requirements under Section 84(1).

6.90 The divisional application can be filed at any time after the filing date of the parent application but before all the grant conditions in Section 30 are met for the parent application, or before the parent application has been refused, withdrawn or treated as having been abandoned.

6.91 A divisional application may serve as the original application of a further divisional application. However, the immediate predecessor must be pending at the time the further divisional application is filed. The original application need not be pending in order to file a second (or later) generation divisional application from the first (previous) divisional application.

6.92 Example:

Take the case of application “A” with three inventions described therein. A first divisional application “B” can be filed with two inventions “divided”, or taking basis,  from application “A”. A further divisional application “C” can be filed with subject matter divided from the divisional application “B” and relying upon this divisional as  its original application. In this case, divisional “C” would have the same filing date as the divisional “B”, which would be the same as the filing date of the application “A”. Hence, if all three applications proceed to grant, they would result in patents that would expire on the same date. However, the time limit for the filing of application “C” is before all the grant conditions in Section 30 are met for divisional “B” or before divisional “B” has been refused, withdrawn or treated as having been abandoned. This time limit is not dependent on the progress of application “A”, which may have been granted before the Examiner makes the requisition to restrict to one invention in divisional application “B”.

6.93 One consequence of prescribing a divisional application with the filing date of the parent application is that for the purposes of examination, a separate and individual treatment applies when the divisional is examined. There is no need to examine a divisional application with the parent, since the exclusive rights begin with the filing date (which is that of the parent) and end 20 years later on the same date as those of the parent. Of course, the Examiner may find it more efficient to examine the two together.