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Divisional Applications

From Part I: Preliminary Examination Chapter 1: Preliminary Examination of Invention Patent Applications

1 Verification of Divisional Applications

If a patent application includes more than one invention, the applicant can voluntarily submit or submit based on the examiner’s opinion, a divisional application. The divisional application should be based on the original application (the first application submitted). The type of the divisional application should be consistent with that of the original application. The divisional application should include the application number and application date of the original application in the request form. If the applicant needs to submit another divisional application for an already submitted divisional application, they should also include the application number of that divisional application. Various proof documents related to the divisional application already submitted in the original application, such as copies of priority applications, preservation and survival certificates of biological materials, etc., are considered as already submitted.

For divisional applications, besides examining the application documents and other documents as per regulations, examiners should also verify the following based on the original application:

(1) Application Date in the Request Form:

The request form should correctly indicate the application date of the original application. If there is an error in indicating the application date, examiners should issue a correction notification for the applicant to correct. If not corrected within the deadline, examiners should issue a notification of withdrawal; if corrected as per regulations, examiners should issue a notification of re-determination of the application date.

(2) Application Number in the Request Form:

The request form should correctly indicate the application number of the original application. If not compliant, examiners should issue a correction notification for the applicant to correct. If not corrected within the deadline, examiners should issue a notification of withdrawal.

(3) Submission Time of Divisional Application:

The applicant should submit the divisional application at the latest before the expiration of the two-month period (the period for carrying out registration procedures) from receiving the notification of granting patent rights for the original application. After the expiration of the above period, or if the original application has been rejected, withdrawn, or considered withdrawn without rights restoration, a divisional application should generally not be submitted.

For an original application for which a rejection decision has already been issued by the examiner, within three months from the applicant receiving the rejection decision, regardless of whether a re-examination request is filed, a divisional application can be submitted. During the re-examination period, within three months from receiving the re-examination decision, and during the administrative litigation period against the re-examination decision, a divisional application can be submitted.

During the preliminary examination, if the filing date of a divisional application does not comply with the aforementioned regulations, the examiner should issue a notification that the divisional application is considered not to have been filed and proceed to close the case.

If the applicant has already filed a divisional application and needs to file another divisional application for the same, the filing date for this subsequent application should still be based on the examination of the original application. If the filing date of this subsequent divisional application does not meet the regulations, the division cannot be made.

However, if the examiner has issued a notice for division or a notice of examination opinion indicating a unity of invention deficiency in the divisional application, and the applicant re-files a divisional application based on the examiner’s opinion, then the filing date of this subsequent divisional application should be based on the examination of the divisional application with the unity of invention deficiency. If this does not comply with the regulations, division cannot be based on this divisional application. In such cases, the examiner should issue a notification that the divisional application is considered not to have been filed and proceed to close the case.

(4) Applicant and Inventor of Divisional Applications

The applicant of a divisional application should be the same as the applicant of the original application at the time the divisional application is filed. The applicant for a subsequent divisional application of a divisional application should be the same as the applicant of that divisional application. If this is not complied with, the examiner shall issue a notification that the divisional application is deemed not to have been filed.

The inventor of a divisional application should be the inventor(s) of the original application, or some of them. The inventor(s) for a subsequent divisional application of a divisional application should be the inventor(s) of that divisional application, or some of them. If this is not complied with, the examiner shall issue a notification for correction, informing the applicant to make corrections. If the corrections are not made within the specified period, the examiner shall issue a notification that the application is deemed to have been withdrawn.

2 Deadlines and Fees for Divisional Applications

The various statutory deadlines applicable to divisional applications, such as the deadline for requesting substantive examination, shall be calculated from the original application date. For deadlines that have already expired or are less than two months away from the date of submission of the divisional application, the applicant may complete various procedures within two months from the date of submission of the divisional application or within fifteen days from the date of receiving the acceptance notice. If these are not completed after the deadline, the examiner shall issue a notice deeming the application withdrawn.

For divisional applications, they shall be treated as a new application and subject to various fees. For fees that have already expired or are less than two months away from the deadline from the date of submission of the divisional application, the applicant may make up the payment within two months from the date of submission of the divisional application or within fifteen days from the date of receiving the acceptance notice. If the payment is not made up, is insufficient, or is not made by the deadline, the examiner shall issue a notice deeming the application withdrawn.