Divisional application
Also called divisional, divisional patent application, European divisional application
Divisional application is a new patent application split out of an earlier (parent) application, which keeps the date of the parent application and the benefit of any priority right. The Paris Convention allows an applicant to divide an application in this way1.
Division is available when examination reveals that an application contains more than one invention. An applicant may also divide an application on its own initiative, under conditions that each Paris Convention country determines1.
Three rules every divisional follows
- It keeps the parent's dateA European divisional application is deemed filed on the date of filing of the earlier application and enjoys any right of priority (Article 76(1) EPC)2. In the US, a divisional application that complies with 35 U.S.C. 120 is entitled to the benefit of the filing date of the original application (35 U.S.C. 121)5.
- It cannot add new matterUnder Article 76(1) EPC, a divisional may be filed only for subject matter that does not extend beyond the content of the earlier application as filed2. The USPTO states that a divisional must not include subject matter that would be new matter if added to the parent by amendment6.
How the main offices handle divisionals
United States
- If two or more independent and distinct inventions are claimed in one application, the Director may require the application to be restricted to one of them (35 U.S.C. 121)5.
- The USPTO describes a divisional as a later application for an independent or distinct invention, carved out of the parent and disclosing and claiming only subject matter disclosed in the parent. It is often filed as a result of a restriction requirement6.
- The divisional must name at least one inventor named in the prior application and must claim the benefit of that application6.
- Where restriction was required, a patent issuing on one application cannot be used as a reference against the other, if the divisional is filed before the patent on the other application issues (35 U.S.C. 121)5.
- Where an application refers to earlier applications under 35 U.S.C. 120 or 121, the patent term ends 20 years from the filing date of the earliest of them, subject to any term adjustment (35 U.S.C. 154)8.
Europe
- The applicant may file a divisional application relating to any pending earlier European patent application (Rule 36(1) EPC)3.
- A divisional must be filed directly with the EPO, and the states designated in the earlier application when the divisional is filed are deemed designated in it (Article 76 EPC)2.
- According to the EPO Guidelines, an application is pending up to, but not on, the date the European Patent Bulletin mentions the grant. A divisional cannot be validly filed once the parent has been finally refused, withdrawn or deemed withdrawn4.
- The divisional is filed in the language of the proceedings for the earlier application (Rule 36(2) EPC)3. If the earlier application was not in an official language of the EPO, the divisional may be filed in the language of the earlier application, with a translation within two months (Rule 36(2) EPC)3.
China
- Where an application contains two or more inventions, utility models or designs, the applicant may file a divisional application before the period set by Rule 60(1) of the Implementing Regulations expires (Rule 48)9.
- Rule 60(1) gives the applicant 2 months from receipt of the notice to grant to complete the registration formalities9.
- A divisional cannot change the type of the original application, and Rule 48 bars a divisional once the application has been rejected, withdrawn or deemed withdrawn9. Under the CNIPA Patent Examination Guidelines, where the examiner has issued a rejection decision, a divisional may still be filed within three months of the applicant receiving that decision, whether or not reexamination is requested, and also during reexamination, within three months of receiving the reexamination decision, and during any administrative lawsuit against that decision11.
- A divisional may keep the original filing date and any priority date, but may not go beyond the scope of the original application (Rule 49)9.
Divisional vs continuation vs continuation-in-part
The USPTO recognizes three kinds of continuing application. All claim the benefit of a prior-filed application, but they differ in what they may contain6.
| Application | What it is | New matter allowed? |
|---|---|---|
| Divisional | A later application for an independent or distinct invention carved out of the parent6 | No6 |
| Continuation | An application for the invention(s) disclosed in a prior-filed copending application6 | No6 |
| Continuation-in-part | Repeats some substantial portion or all of the parent and adds matter not disclosed in it6 | Yes, that is what distinguishes it6 |
Divisionals in patent data
The EPO's DOCDB simple patent family treats continuations and divisions as covering the same technical content as the parent, so they are always placed in the same Patent family as the parent, regardless of the priorities they claim10.
Questions people ask
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Start draftingDoes a divisional application get the parent's filing date?
Yes, if it meets the conditions. Under Article 76(1) EPC it is deemed filed on the parent's filing date and enjoys any priority right, provided it does not extend beyond the parent as filed2. In the US it gets the benefit of the parent's filing date if it complies with 35 U.S.C. 1205. In China it may keep the original filing date and priority date (Rule 49)9.
Can I file a divisional after the parent is granted?
Generally no. At the EPO, the parent is pending only up to, but not on, the date the grant is mentioned in the European Patent Bulletin4. In the US, the divisional must be filed before the parent is patented or abandoned7. In China, the deadline is the end of the 2-month period for completing registration formalities after the notice to grant9 or, if the application is rejected, three months after the applicant receives the rejection decision, whether or not reexamination is requested11.
Can a divisional application add new matter?
No. A divisional is limited to subject matter disclosed in the parent2,6. In the US, an application that adds matter not disclosed in the parent is a continuation-in-part, and the USPTO says a continuation-in-part should not be designated as a divisional6.
Do I need a restriction requirement to file a divisional?
Not always. The Paris Convention allows division on the applicant's own initiative1, and Rule 36(1) EPC allows a divisional from any pending European application3. In the US, divisionals are often filed after a restriction requirement, and the protection in 35 U.S.C. 121 against using one patent as a reference against the other applies where restriction was required5,6.
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