Patents of addition lack examination procedures

By Preeti Sharma, LexOrbis

The Indian Patent Act, 1970 (act) is based on the 1959 Report on the Revision of the Patents Law of the Ayyangar Committee and governs the patent framework. In particular, the act allows patentees to request the grant of a patent of addition to cover improvements to or modifications of the invention covered by the main patent. The main patent will only have been granted if the application for it satisfies the test of invention and a patent of addition will only be granted after the grant of the main patent.

Under the act there are five categories of applications.

  1. Ordinary applications that have been filed directly in the Indian Patent Office (office);
  2. Convention [Paris Convention] applications;
  3. Patent Cooperation Treaty (PCT) applications;
  4. Divisional applications, in which a patent application is separated from the parent application as it covers another and distinct innovation; and
  5. Patent of addition applications, which may be made no earlier than the filing of any application in the other four categories.

Patents of addition

Preeti Sharma
Managing associate

Patents of addition are dealt with in sections 54, to 56 of the act. The applicant must be the same as in the main patent application. Under Rule 13(3) of the Patent Act Rules, 2003 (rules) each patent of addition shall include a reference to the main patent and shall contain a definite statement that the invention comprises an improvement in, or a modification of the invention claimed in the specification of the main patent granted or applied for.

While some countries such as India, Australia and the US provide for such patents, several have done away with patents for the improvements to, or modifications of the main invention. In any event a patent expires 20 years from the filing date of the earliest application in which benefit is claimed.

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Preeti Sharma is a managing associate at LexOrbis.

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