I agree with Subramanian sir in principle. I however have some questions.
Let's say the examiner in FER clearly identifies 3 distinct inventions in parent application. However the applicant files a single divisional for the other two and then files the 2nd divisional just before the grant of the first divisional. In my opinion, the examiner can rightly object to filing the 2nd divisional because the applicant was made aware of the 3 different inventions and he choose to file a single divisional and did not even contest the that the other two inventions are not distinct. This I guess may have been the case in 264/Del/2005 (based upon examiner contention under paragraph 4(v). We need to look at the prosecution history of all the 3 applications to conclusively figure it out.
If examiner identifies only 2 distinct inventions in parent application and the applicant files a div [first] and subsequently the examiner again raises the objection of multiple inventions in the divisional [first], then applicant has the right to file another divisional [second]. If the examiner contends that the second divisional should be filed before the grant of parent, in my opinion, it will be improper.
IIn general I feel that substantive rights should be given more weightage even if there are few prosecution irregularities if they are not going to adversely impact third parties. The applicant should have preferred an appeal before IPAB.
can anyone tell us if there was indeed an appeal in this case???