- Court
- Madras High Court
- Date of judgment
- Judge
- Senthilkumar Ramamoorthy
- Outcome
- Remanded
Headnote
Deemed abandonment under section 40 set aside and the application for a patent of addition remanded. The applicant had filed the parent application in India first, but then filed the continuation-in-part in the United States without first seeking permission under section 39. The Court accepted that a patent of addition stands on a different footing from a divisional application, since the invention it covers is capable of being patented independently and requires additional disclosure. It nevertheless held that section 40 is a legal fiction prescribing drastic consequences for a clear breach of section 39, not for procedural irregularities, and that its scope should not be extended beyond that purpose. Given the strong statutory links between a patent of addition and the parent, and the parent having been filed in India first, the breach was at worst technical and did not trigger deemed abandonment.
Headnote by BRB Legal, written from the judgment: a summary for reference, not legal advice. Read the judgment itself before relying on it.