Outline of divisional application
A divisional application is a description of the claims, specification, and drawings of a patent application when the patent application is pending at the Patent Office (when the patent application has been registered or the decision of refusal has not been finalized). Therefore, it means to create a new scope of claims and apply for a new one (Patent Law Article 44).
The new divisional application is deemed to have been filed at the time of the original application that was the source of the division, and the novelty / inventive step is judged (Patent Law, Article 44, Paragraph 2).
The claims of divisional application B can be made from the claims, specification, and drawings of application A.
Then, the filing date of the divisional application B is made at the time of filing A, and the retroactive effect of the filing date that the patent requirements such as novelty and inventive step are judged can be obtained.
When to file a divisional application
The situation of filing a divisional application is that the original application has received the final reason for refusal and the amendment is limited to the limited reduction of the claims, and the original application has the limited reduction of the claims. However, the scope of claims may not be limited.
Therefore, there is a case where a divisional application is filed in order to prepare a new claim scope based on the claims scope, specification, and drawings of the original application, which is not limited by the amendment of limited reduction of the claims. It seems that there are many.
In addition, if a patent is granted without receiving a decision of refusal, it may be suspected that the patent has been granted even if the claims are a little wider.
In this case, before registration, create a wider range of claims than the original application, file a divisional application, challenge to obtain a patent right with a wider range of rights, and pay the patent fee for the original application. It can be said that the patent right is secured by paying and registering.
In addition, in the case of receiving a reason for refusal of unity of invention, in order to eliminate the reason for refusal of unity of invention, it is regarded as a violation of unity of invention within the scope of the claims of the original application. If the deleted claims are deleted and amended, the grounds for refusal of unity of invention will be resolved. to hold.
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Conditions for divisional application
(1) Independent requirements
The applicants for the original application and the divisional application must be the same.
If the original application is a joint application with multiple applicants, a divisional application must be filed with all applicants as applicants.
(2) Object requirements
The claims, specification, and drawings of the divisional application must be within the scope of the first claims, specification, and drawings of the original application.
The claims of the divisional application are not limited to the claims of the original application, but can be made from the scope of the first claim, the specification, and the drawing of the original application.
Therefore, when filing a divisional application, the scope of the first claim, the specification, and the drawing of the original application are not bound by the limited reduction of the scope of claims as in the case of receiving the final reason for refusal. If it is within, you can freely create the claims.
(3) Timing requirements
(1) When or within the period when the specification of the original application (claims, specifications, drawings) can be amended (Patent Law Article 44, Paragraph 1, Item 1).
(I) From application to service of copy of patent decision (Patent Law Article 17-2, Paragraph 1 text)
(Ii) Within the period specified in the notice of reasons for refusal (usually within 60 days) (Patent Law Article 17-2, Paragraph 1, Item 1, Item 3)
(Iii) Within the period specified in the notification of Article 48-7 of the Patent Act after the notification of reasons for refusal (Patent Act Article 17-2, Paragraph 1, Item 2)
(Iv) Simultaneously with the request for appeal against the decision of refusal (Patent Act Article 17-2, Paragraph 1, Item 4)
(2) Within 30 days from the date of service of the copy of the patent decision (Patent Law Article 44, Paragraph 1, Item 2)
* If a patent application is registered, a divisional application cannot be filed.
(3) Within 3 months from the date of service of the first copy of the decision of refusal (Patent Law, Article 44, Paragraph 1, Item 3)
(4) Procedural requirements
It is necessary to state (1) that the application is a new application and (2) the indication of the original application in the application for divisional application.
Effect of divisional application
A new application due to division is deemed to have been filed at the time of the original application (retroactive effect of divisional application) (Patent Act Article 44, Paragraph 2).
If the above requirements for divisional application are not met, the retroactive effect of the divisional application cannot be obtained, and patent requirements such as novelty and inventive step will be determined based on the date of filing the divisional application.
