When a patent application is filed, it is necessary that one patent application is filed for one invention. If more than one inventions are claimed in a single patent application, such inventions shall be related to each other or we can say that such inventions shall have unity of invention. Unity of invention is a formal administrative requirement that must be met by the inventor to comply with the provisions of patent law. Basically, a patent application should relate to one and only one invention or a group of closely related inventions.
The purpose of this requirement is administrative, as well as financial and prevents applicant from filing single application for more than one inventions, while paying only one set of fees (filing fee, search fee, examination fee, renewal fees, and so on). However, if the inventions are related to each other, single patent application may be filed. For example, the inventions such as, micro organism as a product, its process of isolation, preparation of genetic recombinant strain are related to each other and form a single inventive step. Therefore, all of them have unity of invention and can be claimed and filed as single patent application.
Unity of invention also makes the classification of patent documents easier. If multiple and unrelated inventions are permitted to be claimed and filed as single patent application, assigning multiple classes will be extremely confusing and cumbersome process, further making patent search also difficult. The International Patent Classification (IPC) is a hierarchical patent classification system used by majority of the countries to classify the content of patents in a uniform manner based on the area of technology. Though there are very fine and detailed sub-classes, the broad classes are as below:
A: Human Necessities
B: Performing Operations, Transporting
C: Chemistry, Metallurgy
D: Textiles, Paper
E: Fixed Constructions
F: Mechanical Engineering, Lighting, Heating, Weapons
G: Physics
H: Electricity
During examination of patent application, the application may be objected due to lack of unity. However, such application is not denied the grant due to lack of unity. The applicant is given opportunity to break the parent applications into divisional applications. And this way, all divisional applications continue to exist and are taken for further prosecution. While filing the divisional application, in order to claim priority from the parent application, a statement is required to be added in divisional application, Form-1 & 2 in following format:
This is a divisional application and claims priority from the parent patent application number XXXX/CHE/XXXX with a priority date of Date/Month/year. Separate fee for filing, examination, depending upon the number of claims and pages is applicable for the divisional patent application.
If the Controller feels that one application contains more than one invention (lacks unity of invention), he may direct the applicant to split the application and file divisional application i.e., one application shall be split into more than one application. Section 16 [Power of the Controller to make orders respecting division of application] of Indian Patents Act 1970 says that when an application made by applicant claims more than one invention, the applicant on his own or to meet the official objection during examination of patent application by the examiner, may divide the application and file two or more applications, as applicable for each of the inventions. This type of application, divided out of the parent one, is called a Divisional Application. It is interesting to note that the priority date for all the divisional applications will be same as that claimed by the Parent Application (Ante-dating).
- If claims of the complete specification relate to more than one invention, applicant shall 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.
- Such further application (or divisional application) shall be accompanied by a complete specification, but such complete specification shall not include any matter which was not disclosed in the complete specification filed in pursuance of the first mentioned application.
- The Controller may require such amendment of the complete specification filed in pursuance of either the original or the further application as may be necessary to ensure that neither of the said complete specifications includes a claim for any matter claimed in the other.
- The further application (or divisional application) and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescribed period.
Illustration
- Date of filing provisional application and priority date: 15th November 2006
- Date of filing complete specification: 13th November 2007
- Upon examination of the application, the Controller raises the objection that the invention lacks unity of invention and hence, the application should be split into 2 applications i.e., main or parent application and divisional application.
- Applicant again files the divisional application on 10th Jan 2009
- In such a case, both parent application and divisional application will have priority date of 15th November 2006 even though the divisional application was filed 10th Jan 2009.
This assignment of earlier date to the divisional application is called as Ante-dating.
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