suvrojit roy (no) 15 April 2011

help regarding interpretation of patent act 1970

Can anyone please help me understand section 11(3) of Indian patent act 1970.

It says,

(3) Where the complete specification is filed or proceeded with in pursuance of two or more applications accompanied by such specifications as are mentioned in sub section(2) [I understood sub-section (2)] and the claim is fairly based on the matter disclosed-

(a) in one of those specifications, the priority date of that claim shall be the date of filing of the application accompanied by that specification;

(b) partly in one and partly in another, the priority date of that claim shall be the date of the filing of the application accompanied by the specification of the later date.

I can't understand sub-section (a) and (b).

Also, I am preparing for Patent Agent Examination. Is there any Patent Agent in Kolkata who could help in understanding the various sections of Patent Act by giving tuition. I was a science student and I am facing difficulty in understanding and interpreting the statutes.

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2 Replies

Sy.patents (Freelance) 16 April 2011

According to sec 11 every claims has a priority date. It is this date as on which novelty of your invention is assessed. To make it more simple let me explain you with some examples.

Let us say I filed a

provisional specification on 16^th April 2011

complete specification on 16^th April 2012

the priority date of claims which are fairly based upon the matter disclosed in the provisional is 16^th April 2011.

Let us say I filed two provisionals and one complete specification for both the provisional. This is allowed when both the provisionals are cognate (have related subject matter).

1^st provisional on 16^th April 2011

2^nd provisional on 30^th Sep 2011

Single Complete specification on 16^th April 2012

Let us say you have 3 claims

Claim 1 is based upon the subject matter disclosed in first provisional. Its priority date will be 16^th April 2011.

Claim 2 is based upon the subject matter disclosed in second provisional. Its priority date will be 30^th Sep 2011.

Claim 3 is based upon the subject matter disclosed in both the provisionals i.e., claim 3 recites few elements present in first provisional and few others present in second provisional. In this case the priority date of Claim 3 will be 30^th Sep 2011.

You may now have a question why the priority date of this claim is 30^th Sep, and why not 16^th April. The reason is your conception of invention which is claimed in that particular claim, which has few elements from first provisional and few from second provisional, was completed on 30^th Sep. You cannot claim priority of 16^th April since you were not in possession of those elements as on the date of filing of your first provisional. For example, if I have 50 rupees today with me and I am going to get another 50 rupees after two months, I cannot say today that I have 100 rupees with me. I can only say that after two months when I get the other 50 rupees.

I hope this answers your query.

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suvrojit roy (no) 16 April 2011

Thank you very much sir. your answer helped me a lot to clear my confusion.