Applications must heed: ‘what is not claimed is disclaimed’

By Rajeev Kumar, LexOrbis
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Recently, patent applications have been rejected at the Indian Patent Office where the claims have been amended to change the scope of claim, not necessarily by narrowing or broadening, but by amending and directing the claims to a different invention.

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For example, if the original application contained claims for “use of composition”, then amendment to a claim directed to “composition” was not allowed. Such amendments were rejected especially if the originally filed application did not contain a claim for the said composition.

The basis for such rejections has been “what is not claimed is disclaimed”, citing Electric and Musical Industries et al v Lissen et al (1939).

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