A divisional patent application, also called divisional application or simply divisional, is a type of
patent application
A patent application is a request pending at a patent office for the grant of a patent for an invention described in the patent specification and a set of one or more claims stated in a formal document, including necessary official forms and re ...
that contains subject-matter from a previously filed application, the previously filed application being its parent application.
While a divisional application is filed later than the parent application, it retains its parent's
filing date
This is a list of legal terms relating to patents. A patent is not a right to practice or use the invention, but a territorial right to exclude others from commercially exploiting the invention, granted to an inventor (patent), inventor or his su ...
,
and will generally claim the same
priority. Divisional applications are generally used in cases where the parent application may lack
unity of invention
In most patent laws, unity of invention is a formal administrative requirement that must be met by a patent application to become a granted patent. Basically, a patent application can relate only to one invention or a group of closely related in ...
; 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.
Practice by jurisdiction
The practice and procedure of filing a divisional patent application vary from jurisdiction to jurisdiction. In most countries, the filing of divisional applications is possible at least as long as the parent patent applications are pending. Since 2013, the European Patent Office rules are again in line with the current practice before the patent offices in the U.S., Germany, and Japan.
European Patent Convention
Before the
European Patent Office
The European Patent Office (EPO) is one of the two organs of the European Patent Organisation (EPOrg), the other being the Administrative Council. The EPO acts as executive body for the organisation (EPO), divisional applications can be filed under . 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
The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to w ...
(EPC) require something different.
: "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...."
The practice relating to the filing of divisional applications under the EPC was clarified by the
Enlarged Board of Appeal of the EPO
The European Patent Convention (EPC), the multilateral treaty instituting the legal system according to which European patents are granted, contains provisions allowing a party to appeal a decision issued by a first instance department of the Euro ...
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.
United States
In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, a divisional application is seen as a type of
continuing patent application, except that if a
restriction requirement necessitated the filing of the divisional application, the law provides protection against a rejection of the application and against invalidation of thus-issued patent for
double patenting
Double patenting is the granting of two patents for a single invention, to the same proprietor and in the same country or countries. According to the European Patent Office, it is an accepted principle in most patent systems that two patents canno ...
.
Cascade of divisionals
If a divisional application is filed based on a patent application that is already a divisional application, the newly filed divisional is a second-generation divisional, and so on, "thereby creating a cascade of divisionals".
See also
*
Submarine patent
A submarine patent is a patent whose issuance and publication are intentionally delayed by the applicant for a long time, which can be several years, or a decade.
References
{{reflist, 30em
Patent law