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Patent Question: Why does each claim, even if claimed in subsequent specification, have separate priority date?

ANSWER: Claims have separate priority date because claims are drafted from the disclosure. So, that’s the concept of fair basis, you cannot draft a claim and abstract, it has to be based on a disclosure even when the disclosure happens in the complete you only file a complete and if you have 10 claims, all the 10 claims have to be based on what you have disclosed in your complete.

This is the principle which is mentioned in Section 11(6), any claim it cannot be in abstract or you cannot draft a claim in abstract, the claim should flow out of your description. So, that is what they say, it has to be fairly based. So, there are instances where the disclosure is done in an earlier document, it’s not there in the complete. Say provisional complete route or purported provisional, provisional complete route or an international application and a national phase application route, multiple cases where the disclosure may not be in one document, then the question arises, where did the claim get its priority from, because the disclosure was in parts.

So, that is why we have this principle that because there is a possibility that the disclosure can be in parts, it can be in different documents, we have the principle that each claim should have its priority. Especially, you will find that whenever a complete is filed, followed up with provisional, they will be new sets of claims there, which is not based on what is disclosed. So all of them will have a different priority from what is disclosed in the provisional because it was not even mentioned in the provisional. So, you have this concept because you cannot draft a claim without disclosing the matter and the claim be flowing out of that matter.

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