Editing Divisional patent application

A '''divisional patent application''', also called '''divisional application''' or simply '''divisional''', is a type of [[patent application]] that contains subject-matter from a previously filed application, the previously filed application being its '''parent application'''.<ref name="Daniels">{{cite journal |last1=Daniels |first1=Mark |last2=Parsons |first2=Giles |title=Patents Court grants declarations that dosage regimens were obvious |journal=Journal of Intellectual Property Law & Practice |date=8 August 2017 |volume=12 |issue=8 |pages=624–626 |doi=10.1093/jiplp/jpx112 |quote=Once a patent application is pending, the applicant can file a new application, called a divisional, in respect of the same subject matter as the original application, and this divisional is entitled to the original application’s priority date.}}</ref> While a divisional application is filed later than the parent application, it retains its parent's [[filing date]],<ref name="Daniels"/> and will generally claim the same [[priority right|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 for the Protection of Industrial Property|Paris Convention]].<ref>{{cite web |title=Paris Convention for the Protection of Industrial Property |url=https://wipolex.wipo.int/en/text/288514 |website=wipolex.wipo.int |publisher=WIPO |access-date=4 June 2022 |quote=(Article 4G) (1) If the examination reveals that an application for a patent contains more than one invention, the applicant may divide the application into a certain number of divisional applications and preserve as the date of each the date of the initial application and the benefit of the right of priority, if any. (2) The applicant may also, on his own initiative, divide a patent application and preserve as the date of each divisional application the date of the initial application and the benefit of the right of priority, if any. Each country of the Union shall have the right to determine the conditions under which such division shall be authorized.}}</ref>

==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.<ref>{{cite web |url=http://www.epo.org/law-practice/legal-texts/official-journal/ac-decisions/archive/20131024a.html |title=Decision of the Administrative Council of 16 October 2013 amending Rules 36, 38 and 135 of the Implementing Regulations to the European Patent Convention (CA/D 15/13) |date=24 October 2013 |website=epo.org |publisher=European Patent Office |accessdate=26 October 2013 |archive-url=https://web.archive.org/web/20131027225117/http://www.epo.org/law-practice/legal-texts/official-journal/ac-decisions/archive/20131024a.html |archive-date=27 October 2013 |url-status=dead |df=dmy-all }}</ref>

===European Patent Convention===
{{main|Divisional applications under the European Patent Convention}}
Before the [[European Patent Organisation|European Patent Office]] (EPO), divisional applications can be filed under {{EPC Article|76}}. 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.<ref>[https://web.archive.org/web/20070929134559/http://legal.european-patent-office.org/dg3/pdf/g000105.pdf Decision G 1/05 of the Enlarged Board of Appeal of the EPO], Reasons 3.1 and 8.1.</ref>
: "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...."<ref>Opinion G 4/98 in point 5 of the Reasons, cited in [https://web.archive.org/web/20070929134559/http://legal.european-patent-office.org/dg3/pdf/g000105.pdf decision G 1/05 of the Enlarged Board of Appeal of the EPO], Reasons 8.1.</ref>

The practice relating to the filing of divisional applications under the EPC was clarified by the [[Appeal procedure before the European Patent Office|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 [[amendments under the European Patent Convention|amend]]ed later to remove the deficiency, even at a time when the earlier application is no longer pending.<ref>Decisions [[G 1/05 and G 1/06]] of the Enlarged Board of Appeal of the EPO.</ref>

===United States===
{{See also|Unity of invention#United States}}
In the [[United States]], a divisional application is defined as a specific type of [[continuing patent application]].<ref name="mpep201.06">[https://www.uspto.gov/web/offices/pac/mpep/s201.html#ch200_d1ff70_1e3be_230 MPEP § 201.06]</ref> A later application for an independent or distinct invention, carved out of an earlier-filed patent application and disclosing and claiming only subject matter disclosed in the earlier or parent application, is known as a divisional application.<ref name="mpep201.06"/> In many non-U.S. jurisdictions, however, the term “divisional” is often used more broadly to refer to continuing applications in general, encompassing concepts that may differ from the U.S. definition.

A divisional application is often filed as a result of a [[unity of invention|restriction requirement]] made by an examiner.<ref name="mpep201.06"/> A restriction requirement may be issued if two or more independent and distinct inventions are claimed in a single application.<ref name="35usc121">{{UnitedStatesCode|35|121}}</ref><ref name="mpep803">[https://www.uspto.gov/web/offices/pac/mpep/s803.html MPEP § 803]</ref> In such cases, the examiner may require the application to be restricted to one of the independent inventions.<ref name="35usc121" /><ref name="mpep803" /> Thus, a restriction requirement may require an applicant to divide a single patent application into multiple separate applications. U.S. law provides protection for divisional applications against [[double patenting]] rejections
<ref name="35usc121"/> and invalidation of the resulting patents based on double patenting grounds.

==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".<ref>{{cite journal |last1=Daniels |first1=Mark |last2=Parsons |first2=Giles |title=Patents Court grants declarations that dosage regimens were obvious |journal=Journal of Intellectual Property Law & Practice |date=8 August 2017 |volume=12 |issue=8 |pages=624–626 |doi=10.1093/jiplp/jpx112 |quote=Second-generation divisionals can then in turn be filed from the first-generation divisionals, thereby creating a cascade of divisionals.}}</ref>

==See also==
* [[Submarine patent]]

==References==
{{reflist|30em}}

[[Category:Patent law]]