News and Views


Patent applicants often consider filing divisional patent applications in South Africa. This is frequently undertaken on the back of divisional applications filed in other countries, where claims of different scope are being granted and/or where unity of invention issues arise.

Firstly, to set the stage, the purpose of a divisional application in South Africa is specifically to allow for cases where a specification may contain more than one invention. This function underpins the requirement that the claims of the two applications not be coterminous, with existing case law directing that the purpose of providing for divisional applications is to safeguard the rights of an applicant who has disclosed more than one invention in a single application and is not to allow narrower and broader protection for the same invention in different applications.

With the above in mind; the most recent and relevant case law on the issue of whether the claims of a parent and divisional patent application are coterminous, and that the claims of a divisional application must perforce be different, can be found in Pharma Dynamics (Pty) Ltd v Bayer Pharma AG and another 2014 BIP 69 (SCA). 

In this case, the parent (“2002” patent) and divisional patent (“2004” patent) concerned the active pharmaceutical ingredients DSP and EE. Here, while the text of the two patents were the same (which was held to be both normal and acceptable for divisional applications), the court held that the difference between the two lies (and should lie) in the claims. The 2002 patent was expressly limited to DSP in micronised form [our emphasis]. On interpretation of claim 1 of the 2004 patent, it was found that the claim was broader than the 2002 claim in that it includes DSP having the rapid dissolution rate specified in the claim, however that the dissolution rate had been obtained, which includes, but is not confined to micronisation. On this basis, it was found by the court that the two claims are not coterminous. Based on this, it is interpreted that there is an extra integer in the form of a limitation in the 2002 patent (i.e., micronisation) which is not strictly found in the claims of the 2004 patent.

When comparing the claims of the parent and a proposed divisional application, it is important that an additional integer or limitation must be presented (whether in the parent or divisional), as was the case with the cited judgment discussed above. On the other hand, where a patent application includes two or more inventions, filing a divisional patent application directed to the separate invention is usually clear.

An option an applicant may consider is to allow a parent application to proceed to grant and, at the same time, file a divisional patent application (preferably along with a request to delay acceptance) to allow the applicant additional time to consider including or excluding any limitation/s to the claims which would not be considered coterminous to the parent application. 

As always, it is important to seek the assistance of a patent attorney well versed in South African patent law and to consider the issues on a case-by-case basis. 

Fredo Ströh

Patent Attorney

Email fredos@kisch-ip.com
Tel +27 11 324 3156

This Post Has 43 Comments

  1. homer

    The article strikes a perfect balance between being educational and entertaining. ??

  2. Leia

    Hi i am kavin, its my first time to commenting anywhere, when i read this paragraph
    i thought i could also make comment due to this brilliant post.

    Here is my homepage … blw99 (Leia)

  3. Wonderful work! That is the kind of info that should be shared
    across the web. Disgrace on the search engines for no longer positioning this put up upper!
    Come on over and seek advice from my web site . Thanks =)

    Here is my web page :: blw99 (https://news-a513.koalawallop.net)

  4. I got this site from my buddy who informed me concerning this website
    and now this time I am visiting this web site and reading very informative articles or reviews at this time.

    Feel free to visit my website – blw99 (https://thb-a1125.iwinclub.com)

  5. Vincent

    Attractive section of content. I just stumbled upon your weblog and in accession capital to assert that I get actually enjoyed account your blog
    posts. Any way I will be subscribing to your feeds and even I achievement you access
    consistently rapidly.

    Feel free to visit my site … blw99 (Vincent)

  6. Lara

    I visited multiple websites except the audio quality for audio songs
    current at this web site is truly excellent.

    Also visit my web page: blw99 – Lara

  7. Cary

    Hey! I’m at work browsing your blog from my new iphone 4!
    Just wanted to say I love reading through your blog and look forward to all your posts!
    Carry on the great work!

    Also visit my web blog; blw99 (Cary)

  8. Brittny

    Good way of describing, and nice article to get data on the topic of my presentation subject, which
    i am going to convey in institution of higher education.

    Take a look at my site blw99 – Brittny,

  9. gold ira companies

    Hello there! I just want to offer you a big thumbs up for your excellent info you have right here on this post.
    I’ll be coming back to your site for more soon.

  10. https://techpegg.site/

    Howdy! Would you mind if I share your blog with my zynga group?
    There’s a lot of folks that I think would really appreciate your content.
    Please let me know. Many thanks

  11. https://onlinetop.site/

    This is the perfect site for anyone who really wants to understand this
    topic. You know a whole lot its almost hard to argue with
    you (not that I actually will need to…HaHa). You certainly put a fresh spin on a topic that
    has been discussed for years. Great stuff, just excellent!

  12. My brother suggested I would possibly like this
    web site. He was entirely right. This put up truly made my day.
    You cann’t imagine simply how a lot time I had spent for this information! Thank you!

  13. I feel this is one of the so much important info for me.
    And i am glad studying your article. But want to
    commentary on some normal issues, The web site style
    is ideal, the articles is in reality nice : D. Good activity, cheers

  14. Your method of describing all in this article is really pleasant,
    all can effortlessly be aware of it, Thanks a lot.

  15. Having read this I thought it was rather informative. I appreciate you spending some time and energy to put this article together.

    I once again find myself spending a significant amount of
    time both reading and leaving comments. But so what, it was still worth it!

  16. mesin Putaran

    Ahaa, its fastidious discussion regarding this post at this place at this website,
    I have read all that, so at this time me also commenting here.

  17. This is really fascinating, You’re an excessively
    skilled blogger. I’ve joined your feed and stay up for looking for extra of your excellent post.
    Also, I’ve shared your web site in my social networks

  18. viagra sat?n al

    Your mode of explaining the whole thing in this paragraph is in fact good, every one be able to effortlessly understand it, Thanks a lot.

  19. Slot iklan retargeting

    I think the admin of this website is genuinely working hard in support of his web page, for the
    reason that here every material is quality based information.

  20. login Togel838

    Hello my family member! I wish to say that this article is awesome,
    great written and come with approximately all vital infos.
    I would like to look extra posts like this .

  21. online casino

    If you wish for to grow your know-how just keep visiting this site and be updated with the hottest news posted here.

  22. Syair Sdy

    There is certainly a great deal to know about this issue.

    I really like all of the points you have made.

  23. ???? ???? ??? ?????

    I love what you guys are up too. This type of clever work and coverage!
    Keep up the amazing works guys I’ve incorporated you guys to my own blogroll.

  24. ???? ????

    Fantastic items from you, man. I’ve consider your stuff previous to and
    you are simply too great. I actually like what you have obtained here, certainly like what you’re saying and the way in which through which you are saying it.
    You make it enjoyable and you continue to take care of to stay it wise.
    I cant wait to learn far more from you. That is actually a tremendous website.????? ??

  25. Syair Sgp

    I do not know whether it’s just me or if everyone else encountering problems with your website.
    It looks like some of the written text in your posts
    are running off the screen. Can someone else please provide feedback and let me know if this is
    happening to them as well? This might be a issue with my web browser
    because I’ve had this happen before. Appreciate it

  26. balmorex review

    I couldn’t resist commenting. Well written!

  27. ??????????????????????

    Actually no matter if someone doesn’t be aware of afterward its up to
    other users that they will assist, so here it happens.

  28. ??????? ??

    Unquestionably believe that which you said. Your favorite reason seemed to be on the internet the easiest thing to be aware of.
    I say to you, I certainly get annoyed while people think about
    worries that they plainly don’t know about. You managed to hit the nail
    upon the top as well as defined out the whole thing without having side effect , people
    can take a signal. Will probably be back to get more. Thanks

  29. ????

    Hello, of course this post is actually pleasant and I have learned
    lot of things from it on thee tolic of blogging. thanks.

    Here iis my sie :: ????

  30. betcity

    I was suggested this web site by means of my cousin. I am no longer certain whether this publish is written via him as nobody
    else recognize such detailed about my difficulty.
    You’re wonderful! Thank you!

  31. ????? ??? ????

    You can definitely see your enthusiasm in the work you write.
    The world hopes for even more passionate writers such as you who aren’t
    afraid to mention how they believe. All the time go after your heart.

  32. ????????????????

    Right now it appears like WordPress is the top blogging
    platform out there right now. (from what I’ve read) Is that what you’re using on your blog?

  33. sugar defender order

    I have learn some just right stuff here. Certainly value
    bookmarking for revisiting. I wonder how so much effort
    you put to create any such fantastic informative website.

Leave a Reply