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Real-life scenario · fictionalised
The improvement that was never covered
A company files on a cooling arrangement for an electric drivetrain. Over the following two years, testing changes the geometry substantially and a new flow path is introduced that improves performance by a further 15 per cent. The product ships with the new geometry. Nobody revisits the patent position. Four years later a competitor patents the new flow path.
Where does that leave the company?
The gap between the filing and the product
The application protects what it described. The product uses something else. The company's own earlier publication is prior art against the improvement, which limits what they could have filed later - but it does not, by itself, stop a competitor whose flow path differs from what was published.
So the company sells a product it cannot protect, while a competitor holds a right that may read on it.
The three routes that were available
A further application on the improvement, if independently new and inventive, filed before it was disclosed or sold.
A patent of addition, where the improvement would be obvious over the company's own patent - it runs for the unexpired term of the main patent with no separate renewal fees, and the main patent cannot be used against its inventive step.
A divisional, if the flow path had actually been described in the parent but never claimed - which is one more reason to write alternatives into the original specification.
What should have happened
- Put a standing item on the engineering review: what has changed since we filed?
- Compared the product specification against the patent specification before launch.
- Filed on the improvement before it shipped.
- Written the alternatives into the original specification, so a divisional would have been available.
Engineering does not stop on filing day, and neither should the patent conversation.
This scenario is a composite teaching example written by Ragulika IP. It does not describe any real client, application or matter, and any resemblance to a specific case is coincidental.
Sources & further reading
- The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text
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The divisional you could no longer file
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Not sure whether this applies to your invention?
The honest answer usually needs someone to look at your actual disclosure, your timeline and the prior art. That is a conversation, not an article.
Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.