Divisional patent application

Divisional patent application

A divisional patent application (sometimes referred to as a divisional application or simply a divisional) is a type of patent application which contains matter from a previously filed application (the so-called parent application). Whilst a divisional application is filed later than the parent application, it may retain its parent's filing date, and will generally claim the same priority.

Divisional applications are generally used in cases where the parent application may lack unity of invention; that is, the parent application describes more than one invention and the applicant is required to split the parent into one or more divisional applications each claiming only a single invention. The ability to file divisional applications in cases of lack of unity of invention is required by Article 4G of the Paris Convention.[1]

Contents

Practice by jurisdiction

The practice and procedure of filing a divisional patent application varies from jurisdiction to jurisdiction.

European Patent Convention

Main article: Divisional applications under the European Patent Convention

Before the European Patent Office (EPO), divisional applications can be filed under Article 76 EPC. A European divisional application is a new application which is separate and independent from the parent application, unless specific provisions in the European Patent Convention (EPC) require something different. [2]

"The procedure concerning the divisional application is in principle independent from the procedure concerning the parent application and the divisional application is treated as a new application.... Although there are some connections between the two procedures (e.g. concerning time limits), actions (or omissions) occurring in the procedure concerning the parent application after the filing of the divisional application should not influence the procedure concerning the latter...." [3]

The practice relating to the filing of divisional applications under the EPC was clarified by the Enlarged Board of Appeal of the EPO in June 2007. The Board held that a divisional application which on filing contained subject-matter extending beyond the content of the earlier application as filed could be amended later to remove the deficiency, even at a time when the earlier application is no longer pending.[4]

United States

In the United States, a divisional application is seen as a type of continuing patent application.

See also

References

  1. ^ "Paris Convention for the Protection of Industrial Property". WIPO. http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html#P83_6610. Retrieved 2006-07-24. 
  2. ^ Decision G 1/05 of the Enlarged Board of Appeal of the EPO, Reasons 3.1 and 8.1.
  3. ^ Opinion G 4/98 in point 5 of the Reasons, cited in decision G 1/05 of the Enlarged Board of Appeal of the EPO, Reasons 8.1.
  4. ^ Decisions G 1/05 and G 1/06 of the Enlarged Board of Appeal of the EPO.

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