China: Introduction To Strategic Handling Of Divisional Applications

Last Updated: 3 January 2018
Article by AFD China Intellectual Property

The division application system is designed for the situation where a patent application contains more than one inventions/utility models/designs. The applicant may submit divisional application(s) based on the initial application to have each application represent only a single invention concept.

In this article, we will go over the basic information of the divisional application system so as to allowing you to make full use of the system when needed.

Why apply for a divisional application?

The patent applicant, if wishes to seek protection for the contents in the initial application or the contents to which patent right is not granted in the initial application, may, before the expiration of the prescribed period of time, file a divisional application on the aforesaid contents. Contents to which patent right is not granted can be the claims pointed out by the examiner as lacking unity, or the claims not accepted by the examiner in the initial application. By filing a divisional application, such claims can have another chance for examination.

For a divisional application based on the initial application, the initial application date may be retained and the priority date may be retained if priority has been claimed. That is to say, the application date of a divisional application generally is consistent with the initial application. The filing date of the initial application is the start of protection of patent right after the divisional application is granted; and if priority is claimed, the cut-off date for examination of novelty and inventiveness in the substantial examination should be in accord with the priority date of the initial application.

What are the general requirements for filing a divisional application?

(1) The divisional application may not change the type as filed by the initial application.

(2) The filing number and the date of filing of the initial application shall be indicated in the filing request of the divisional application.

(3) The divisional application does not go beyond the scope of disclosure contained in the initial application.

(4) The divisional application shall be filed in the prescribed time limit.

When can a divisional application be filed?

Pursuant to the provisions of the Guidelines for Patent Examination, the applicant shall file the divisional application within two months from the receipt date of the notification to grant the patent right to the initial application (i.e. the time limit for responding to the notification and completing the formalities for granting). For the initial application that the examiner has issued a rejection, the applicant may submit a divisional application within three months from the receipt date of the decision rejecting the initial application, regardless of whether an application of reexamination for challenging the rejection is filed; the applicant also may file a divisional application after the request for reexamination is made or during the administrative lawsuit if not satisfied with the decision of the reexamination.

In fact, as long as an initial patent application is still pending / no final decision has taken effect, the applicant may initiate a divisional application based on it. Accordingly, applicants who wish for a fast grant of patent right and a full scope of protection may consider adopting such a prosecution manner that he can narrow the scope of protection as far as to obtain the grant of the patent right for the initial application, and file a divisional application for the contents which were discarded previously. Once granted with patent right, the divisional application will have the same effect as the initial application.

Further divisional applications

Further or cascading divisional patent applications are allowed in China on some certain occasions.

Pursuant to the provisions of the Guidelines for Patent Examination, where the applicant needs to file a further divisional application based on a divisional application, the time limits for filing of the further divisional application shall be calculated from the initial application, which is explained in the above section. If the time limits cannot be met, the further divisional application shall not be allowed, except in the situation that the divisional application on which the further divisional application will base lacks unity and the further divisional application is filed upon the examiner's opinion.

That is to say, in general, if the time limit for filing a divisional application for the initial application has passed, filing further divisional application(s) also shall not be allowed. However where the examiner, in the examination of a divisional application, points out unity problem in the divisional application in an Office Action or issues the Notification of Filing Divisional Application(s), the applicant can file an further divisional application based on the such notifications.

Furthermore, in practice, the time for filing the additional divisional application is in accord with the time limit for responding the notification, although it is not explicitly stipulated in relevant law and regulations.

It is suggested that the applicant, when filing a divisional application, seek for protection of the scope as broad as desired and consider the possibility or necessity of filing further divisional application(s) to try to secure the coverage. Where the applicant thinks of filing further divisional application(s), it is advised that he includes claim(s) having obvious unity problem so as to reserve an opportunity of it being pointed out by the examiner and thus to have the chance to file further divisional application(s).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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