The requirement of a plurality of inventions in the parent application does not apply when the Divisional Application is filed suo moto. The plurality of inventions need not be reflected in the claims of the parent application, but can be found in the disclosures in the complete specifications accompanying the claims.

ORDER (Oral)

C.A.(COMM.IPD-PAT) 471/2022

1. This is an appeal under Section 117-A of the Patents Act, 1970, seeking to impugn the order dated 11 October 2017, passed by the Deputy Controller of Patents and Designs ("Deputy Controller", hereinafter), whereby Application No. 7059/DELNP/2011, filed by the appellant as a Divisional Application under Section 16¹[16. Power of Controller to make orders respecting division of application.--
(1) A person who has made an application for a patent under this Act may, at any time before the grant of the patent, if he so desires, or with a view to remedy the objection raised by the Controller on the ground that the claims of the complete specification relate to more than one invention, 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.
(2) The further application under sub-section (1) shall be accompanied by a complete specification, but such complete specification shall not include any matter not in substance disclosed in the complete specification filed in pursuance of the first mentioned application.
(3) 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.
Explanation.-For the purposes of this Act, the further 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.] of the Patents Act, arising out of Application 6114/DELNP/2005, dated 28 December 2005 ("the parent application", hereinafter), seeking a patent for an "Agrochemical concentrate comprising an adjuvant and hydrotrope" has been rejected.

2. Mr. Pravin Anand, learned Counsel for the appellant has drawn my attention to Claim 1 in the parent application, which reads thus:

"1. An agrochemical concentrate having a continuous water-containing single phase characterised in that said continuous phase also comprises an oil-based adjuvant and a hydrotrope capable of solubilising said adjuvant in said continuous phase."

3. As is apparent, Claim 1 includes, as an essential feature of the claimed invention, an oil based adjuvant and a hydrotrope capable of solubilising the adjuvant in the continuous phase. The adjuvant-hydrotrope combination is, therefore, empirical to the claimed invention - as is apparent even from the title of the patent application.

4. In the complete specification accompanying the aforesaid claim, and forming part of the parent application, the appellant proposed three preferred combinations of hydrotrope and oil-based adjuvants, for the purpose of Claim 1. The relevant part of the complete specifications read thus:

"(a) Benzosulphonate hydrotropes such as ammonium cumene sulphonate and ammonium xylene sulphonate in combination with fatty alcohols, fatty acids or fatty amines and simple derivatives thereof such as methyl esters and adjuvant oils derived from plant terpenes.

(b) Anionic alkylaryl carboxylatehydrotropes such as the potassium salt of 5(6)-carboxy-4-hexyl-2-cyclohexene-l octanoic acid (commercially available under the trade name WESTVACCO H240) in combination with fatty alcohols, fatty acids or fatty amines and simple derivatives thereof such as methyl esters and short chain ethoxylates, especially when these materials are also blended with linear or branched mineral oils.

(c) Phenol type hydrotropes, such as sodium salicylate, in combination with long chain ethoxylate versions of synthetic or fatty adds, alcohols and amines."

5. Subsequently, on 15 September 2011, the appellant filed a Divisional Applica