Most patent disputes are about refusals. Yangtze Memory Technologies Co. Ltd. v. Union of India & Anr. [W.P.(C)-IPD 10/2025] is the rare case of an applicant challenging the grant of its own patent — because the grant came before it could file a divisional. The Delhi High Court was unsympathetic, and the reason is a neat lesson in election.
Defend unity, or divide — not both, later
The application (no. 202127020980, “Novel 3D NAND Memory Device and method of forming the same”) drew a Section 10(5) objection that the claims contained a plurality of inventions not linked by a single inventive concept. Rather than file a divisional under Section 16, the applicant consistently defended unity and pressed for all claims in one application, mentioning a divisional only as a conditional fallback “if” the Controller found distinct inventions. The Controller accepted the unity argument, waived the objection, and granted the patent on 26 July 2024. Five days later the applicant tried to file a divisional; the Office refused, because Section 16 permits divisionals only before grant of the parent.
No definite intention, no advance-notice right
The Court held the conditional reference to a divisional was not a definite intention to file one; since the Controller accepted unity, the very contingency never arose. Section 16 allows a divisional (voluntary or to cure a plurality objection) only before grant, and the discretion to exercise that right lies with the applicant — who had over three years and chose to defend unity instead. The Court also rejected the claim that the grant came “without warning”: the Act imposes no duty to give advance notice of grant, and Section 43 requires the Controller to grant as expeditiously as possible once the application is in order. It distinguished the Madras High Court’s BASF SE v. Deputy Controller , where the divisional had been filed before the applicant learnt of the grant — the opposite of Yangtze’s post-grant attempt. The writ was dismissed.
Why it matters
Yangtze is a sharp warning about prosecution strategy: defending unity and keeping a divisional alive are, in practice, in tension, and you must commit. If a continued claim set has independent value, file the divisional before grant — do not bank on a conditional sentence in written submissions or on an informal expectation of a further hearing. The decision also reinforces that grant is the hard cut-off for Section 16 (a point of friction with applicants ever since the timing was tightened), and that there is no statutory right to be warned that grant is imminent. The practical takeaway pairs well with this blog’s note on the “live claims” principle in Harvard: what is on record, and when, decides everything.
Sources & further reading: Section 16; Section 10(5); Section 43; BASF SE v. Deputy Controller.
Educational note: This case summary is general information, not legal advice.