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Divisional Applications in India – Evolving jurisprudence
By Jaya Pandeya and Ankur Garg
Elaborately discussing various IPAB Orders, including the 2011 decision in the case of LG Electronics and the very recent decision in the case of Esco Corporation, the article in this issue of IPR Amicus examines several issues involving divisional applications. Stating that the claims of divisional application should have their roots in the claims of the parent application but a divisional application is not to be filed with the same set of claims as the parent/main application, the authors note that it will be interesting to see how the patent office devices an objective test to assess this. The article also points out that the Esco Corporation decision clarifies that a divisional of a divisional application is valid. The authors note that the decision has also relied at the provisions of unity of invention in the Patents Act, 1970 and the rules of Patent Cooperation Treaty (PCT) to identify the manner in which determination of unity of invention should be made. Finally noting that the IPAB has also laid down guiding principles to address the issue of different practices being adopted by the applicants and the patent office, the authors state that they look forward to these being put into practice by the patent office...
Statute Update
Patents – Fees payable by a small entity reduced – Patent Rules amended to bring small entities at par with start-ups
Patents – Filing of priority documents and statements – Patents Rules amended
Ratio Decidendi
Mere addition of prefix/suffix to a trademark is of no consequence when marks deceptively similar – Delhi High Court
Patents – Pre-grant opposition not maintainable after Controller disposes patent application – Bombay High Court
‘Delhivery’ is a phonetically generic word relating to ‘delivery’ – Delhi High Court
Patent infringement suit in India – Anti-suit injunction order by foreign court when not enforceable – Delhi High Court
News Nuggets
No global damages for infringement of a UK Standard Essential Patent
Copyrights in trade dress of ‘Monaco’, ‘Krackjack’ and ‘Hide & Seek’ biscuits – Interim relief against ‘CrackO’, ‘Kracker King’ and ‘Peek-a-Boo’
Trademarks – Territorial jurisdiction of High Court – Place where defendant markets its product
Patents – No discretion with Controller to refuse a case without hearing
