Therefore, a correct understanding of the "time limit for handling registration procedures" has become a prerequisite for determining the time limit for divisional applications. The author provides two understandings. First, the above-mentioned relevant provisions are directly interpreted literally, that is, "the time limit for going through the registration formalities" refers to the two-month time limit allowed by law after the applicant receives the patent authorization notice, from which it can be directly deduced that the deadline for the divisional application is two months from the date when the applicant receives the authorization notice. According to this understanding, the "registration period" is fixed for two months, which we can call "fixed period". Secondly, according to the legislative spirit of the patent law, the purpose is explained, that is, the "time limit for handling registration procedures" should refer to the date of receiving the patent authorization notice to the date of actually completing the registration procedures. If the applicant voluntarily gives up the registration formalities, the term is the same as that of the first understanding, which is called "no fixed term". I agree with the second understanding: divisional application is a concept in the process of patent application. Division application is a kind of patent application based on the parent case application, which is limited by the application date and public scope of the parent case. Judging from the provisions on divisional application, Chapter III of the Detailed Rules for the Implementation of the Patent Law and the first and second parts of the Patent Examination Guide all stipulate that the patent application examination stage is a divisional application. This can be seen from the provisions of section 5. 1. 1 in chapter 1 of Part I of the Patent Examination Guide, "Time for filing a divisional application". Even if the notice of rejection or deemed withdrawal is received, the applicant may file a divisional application within the time limit prescribed by law for seeking relief. If the applicant files a review or even an administrative lawsuit, as long as the relevant judgment or decision is not effective, the applicant can still file a divisional application. Some popular descriptions are: within the time limit when the mother case application still has the hope of rescue (not dead), a divisional application can be filed. In other words, the above period is still in the examination stage of the parent patent application, so a divisional application can be filed at this stage. Of course, if the parent case has been registered and the authorization has been announced, the authorization status has been determined, and the application stage of the parent case is terminated and closed, then the split application should not be allowed after the patent authorization of the parent case is announced. Therefore, the split application should not be allowed during the period when the parent case has been authorized or cannot be authorized.
"No fixed term" can take care of the interests of the applicant better than "fixed term". If the time limit in the first sense is fixed, once the applicant fails to file a divisional application within the above-mentioned "fixed time limit", he will also lose the opportunity to apply for restoration of rights according to Article 6 of the Detailed Rules for the Implementation of the Patent Law. However, according to the second understanding of "no fixed term", after the completion of the right restoration procedure and before the completion of the authorization registration procedure, a divisional application can be filed. From this point of view, "no fixed term" is much longer than "fixed term", which is conducive to protecting the interests of applicants. "Regularity" will harm the public's trust interests. Patent authorization announcement has publicity effect, and it is also the information source for the public to know the public content and approved protection scope of the authorized patent, so as to guide the public to carry out related research, production and business activities. If, according to the "fixed term" in the first understanding, the patent application is allowed to be divided after the announcement of the parent case patent application authorization, so as to obtain a patent authorization different from the protection scope of the parent case, the guiding function of the law on social production and life will be lost, and on the premise of knowing and analyzing the contents of the parent case announcement, there will still be unknown risks in other people's related production and business activities, which will damage the trust interests of the public and is not in line with the legislative purpose of balancing interests of intellectual property law. Adopting "fixed term" will conflict with the principle of donation. According to Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes (I), the people's court does not support the technical scheme that is only described in the specification or drawings but not recorded in the claims. This is the relevant provision that China confirms that the "donation principle" can be applied to judicial practice. If the "fixed term" in the first understanding is adopted, it seems that the application for division is made after the announcement of the authorization of the parent case application. If the divisional application is finally authorized, it will conflict with the above judicial interpretation. According to the law, the claim in the divisional application cannot be the same as the parent case, but the technical scheme of the divisional application must have been recorded in the parent case application, that is, the technical scheme of the divisional application is recorded in the parent case, but it is not included in the authorized claim of the parent case. According to the above judicial interpretation, the technical scheme that has been made public and not included in the scope of protection should be regarded as the applicant's donation to the public and become a well-known public technology. If the above-mentioned divisional application is authorized, it should be protected by law according to law, which will lead to conflicts.
According to the provisions of the above judicial interpretation, the applicant shall, while confirming the authorization of the mother case, donate the technical scheme not included in the mother case claim and recorded in the mother case specification to the society. If the applicant applies for the above-mentioned donated technical scheme according to the "fixed term" in the first understanding, so as to take the donated technical scheme as his own, this not only violates the principle of good faith, but also harms the interests of the public. Whether the parent case is finally authorized or not, the deadline for submitting the application for division should be limited to the date when the authorized status of the parent case is determined. (happy. Com- a leading one-stop intellectual property service platform, focusing on invention patent application, patent invalidation and international patent protection business)
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Understand the time limit of patent division application
Understand the time limit of patent division application
Patent divisional application plays an important role in the patent application strategy toolbox. Skillful use of patent application strategy is a necessary skill for senior patent agents. When implementing the patent application strategy within the framework of patent layout, it is very important to grasp the timing of patent application by case.
The original intention of applying for patent division by law is mainly to solve the problem of single defect between the claims of the original application (also known as "mother case"). The applicant's divisional application based on the single defect pointed out by the examiner in the patent examination process is passive. As long as the divisional application is made in strict accordance with the time limit specified in the notice of examination opinions, there should be no dispute here.
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China's laws do not prohibit patent applicants from filing divisional applications voluntarily, which provides space for patent agents to use divisional applications to enrich patent application strategies. In China, there are still no clear and specific provisions on the filing period of the initiative divisional application, which leads to problems in accurately grasping this period in the practice of patent application.
Although the starting date of the application for active division is not clearly stipulated, according to the nature and purpose of the application for division, it should be after the filing date of the parent case. In the application practice, there is less controversy about the start date of divisional application, and the deadline of divisional application is more interesting and controversial.