Division application
Several cases of 1. splitting
If the application does not meet the following conditions, the examiner shall require the applicant to modify the application documents (including case-by-case processing) to meet the requirements of oneness.
(l) The original claim contains two or more inventions that do not meet the requirements of oneness.
Where the originally submitted claim contains two or more inventions that do not belong to the general inventive concept, the applicant shall be required to limit the claim to one of them (generally the invention corresponding to claim 1) or more than two inventions that belong to the general inventive concept. For the remaining inventions, the applicant may submit a divisional application.
(2) The independent claim added or replaced in the revised application document is inconsistent with the invention in the original claim.
In the process of examination, the applicant added the invention originally described in the specification to the original claim as an independent claim when amending the claim, or amended the claim when replying to the notice of examination opinions, and replaced the original independent claim with the invention originally described in the specification as an independent claim, but there was a lack of oneness between the invention and the invention in the original claim. In this case, the examiner shall generally require the applicant to delete the added or replaced invention from the claim. The applicant may submit a divisional application for the deleted invention. (3) One of the independent claims lacks novelty or creativity, and the other claims lack singleness.
An independent claim (usually claim L) lacks novelty or creativity, which leads to the loss of the same or corresponding specific technical features between other independent claims juxtaposed with it, or even between its subordinate claims, that is, the lack of oneness, so it needs to be revised. The applicant may submit a divisional application for the theme deleted due to revision. For example, after searching and examining the application including product, manufacturing method and use, it is found that the product is known, and the remaining independent claims of the manufacturing method of the product and the independent claims of the use of the product obviously cannot have the same or corresponding specific technical characteristics, so it needs to be revised.
The division of the above situation can be the applicant's initiative to request a division, or it can be the applicant's division according to the requirements of the examiner. It should be pointed out that the filing of the divisional application is the voluntary behavior of the applicant, so the examiner only needs to ask the applicant to change two or more inventions that do not meet the requirements of oneness into one invention, or to change them into two or more inventions that belong to a general invention concept. As for whether to file a divisional application for the modified remaining inventions, it is entirely up to the applicant.
In addition, one application can submit one or more divisional applications, and one or more divisional applications can be submitted based on the original application. If the filing date of the divisional application does not meet the requirements of Section 5. 1. 1 The first chapter of the first part of this guide will not be allowed unless the examiner points out the defects of oneness.
2. Requirements to be met for divisional application
The divisional application shall meet the following requirements.
(l) the text of the divisional application
A divisional application shall indicate at the beginning of its specification, that is, before the technical field to which the invention belongs, which divisional application this application is, and the application date, application number and invention-creation name of the original application.
When submitting a divisional application, a copy of the original application documents shall be submitted; Where priority is claimed, a copy of the priority document of the original application shall also be submitted.
(2) Contents of divisional application
The contents of the divisional application shall not exceed the scope recorded in the original application. Otherwise, the application for division shall be rejected on the grounds that it does not conform to the provisions of the first paragraph of Article 43 of the Detailed Rules for the Implementation of the Patent Law or Article 33 of the Patent Law.
(3) Description and claims of the divisional application
The claims of the original application and the divisional application after division shall require the protection of different inventions respectively; And their specifications can allow different situations. For example, before the division, the original application had two inventions, A and B; After the division, the rights of the original application
If the claim protects a, the description can still be a and b, or only a can be kept; If the claim of the divisional application requests to protect B, its description can still be A and B, or just B..
For the requirements on the applicant, filing time and category of divisional application, please refer to the provisions in Section 5. 1. The 1 in Chapter I of Part I of this Guide shall apply.
3. Departmental review
Where the application needs to be divided into cases, the division examination shall include the examination of the divided application and the examination of the original Chinese application after the division, and shall be carried out in accordance with the provisions of Articles 42 and 43 of the Detailed Rules for the Implementation of the Patent Law.
(l) According to the first paragraph of Article 43 of the Detailed Rules for the Implementation of the Patent Law, the contents of the divisional application shall not exceed the scope recorded in the original application. Otherwise, the examiner shall require the applicant to make amendments. Where the applicant fails to modify or further modify the contents beyond the scope of the original application specification and claims, the examiner may reject the divisional application on the grounds that the divisional application does not conform to the first paragraph of Article 43 of the Detailed Rules for the Implementation of the Patent Law or the modification does not conform to the provisions of Article 33 of the Patent Law in accordance with the provisions of Item (3) of Article 53 of the Detailed Rules for the Implementation of the Patent Law.
(2) In accordance with the provisions of paragraph 2 of Article 42 of the Implementing Rules for the Patent Law, if the application does not conform to the provisions of paragraph 1 of Article 31 of the Patent Law and Article 34 of the Implementing Rules for the Patent Law, the applicant shall be notified to amend his application within a specified time limit. That is to say, the original application is changed into an invention or several inventions belonging to a general inventive concept within the time limit. At the same time, the applicant shall be reminded that if he fails to reply within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn; If there is no sufficient reason not to change the original application into a single application, the examiner may reject the application on the grounds that it does not conform to the provisions of the first paragraph of Article 31 of the Patent Law. Similarly, if the divisional application of the original application does not meet the requirements of singleness, it shall also be handled in the above manner.
(3) Except for the examination in accordance with Articles 42 and 43 of the Detailed Rules for the Implementation of the Patent Law, other examinations are the same as those of general applications.