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Divisional application
1. Several circumstances of division
If an application has the following circumstances that do not meet the unity requirement, the examiner shall require the applicant Modify the application documents (including division of cases) to make them comply with the requirements of unity.
(l) The original claim contains two or more inventions that do not meet the unity requirement.
If the originally submitted claim contains two or more inventions that do not belong to a general inventive concept, the applicant should be required to limit the claim to one of the inventions (generally the claim 1 corresponding invention) or two or more inventions belonging to a general inventive concept. For the remaining inventions, the applicant may submit a divisional application.
(2) There is no unity between the independent claims added or replaced in the revised application document and the invention in the original claims.
During the examination process, when amending the claims, the applicant may add the invention that was originally only described in the specification as an independent claim to the original claims, or amend it when responding to the Office Action. Claims, the invention that was originally only described in the specification shall be replaced as an independent claim by the original independent claim, but there is a lack of unity between the invention and the invention in the original claim. In this case, the examiner should generally require the applicant to delete the later added or substituted invention from the claims. The applicant may submit a divisional application for the deleted invention. (3) One of the independent claims lacks novelty or inventive step, and the remaining claims lack unity.
A certain independent claim (usually claim l) lacks novelty or inventive step, resulting in the loss of the same or corresponding specific technology among the other independent claims that are juxtaposed with it, or even among its dependent claims. Characteristics, i.e. lack of unity and therefore requiring amendment, the applicant may submit a divisional application for the subject matter to be deleted as a result of the amendment. For example, in an application that covers a product, manufacturing method and use, it is found through search and examination that the product is known, and the remaining independent claims for the manufacturing method of the product and the independent claim for the use of the product are obviously not likely to be identical or corresponding specific technical characteristics and therefore they require modification.
The division of the case in the above situation can be made by the applicant at the request of the applicant, or by the applicant at the request of the examiner. It should be noted that since filing a divisional application is a voluntary act by the applicant, the examiner only needs to require the applicant to change two or more inventions that do not meet the unity requirement into one invention, or change them into one invention that belongs to a general inventive concept. For two or more inventions, it is entirely up to the applicant to decide whether to file a divisional application for the remaining inventions after revision.
In addition, for one application, one or more divisional applications can be filed, and for one divisional application, one or more divisional applications can be filed based on the original application. case application. If a divisional application is filed against a divisional application, if its filing date does not comply with the provisions of Section 5.1.1(3) of Chapter 1 of Part 1 of these Guidelines, it will not be allowed unless the examiner points out a single divisional application. Sexual flaws.
2. Requirements that a divisional application should meet
A divisional application should meet the following requirements.
(l) The text of the divisional application
The divisional application should state which application this application is filed at the beginning of its description, that is, before the technical field to which the invention belongs. Apply for a divisional case and indicate the filing date, application number and invention name of the original application.
When submitting a divisional application, a copy of the original application documents shall be submitted; if priority is claimed, a copy of the priority document of the original application shall also be submitted.
(2) Contents of divisional application
The content of divisional application shall not exceed the scope recorded in the original application.
Otherwise, the divisional application shall be rejected on the grounds that it does not comply with the first paragraph of Article 43 of the Implementing Rules of the Patent Law or the provisions of 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 respectively claim protection for different inventions; and they The instructions may allow for different situations. For example, before division, the original application contained two inventions, A and B; after division, if the original application's claims request protection for A, its descriptions can still be A and B, or only A and B can be retained. A; if the claims in the divisional application claim protection for B, the description can still be A and B, or just B.
The requirements regarding the applicant for a divisional application, the time of submission and the type of divisional application shall apply to the provisions of Section 5.1.1 of Chapter 1 of Part One of these Guidelines.
3. Divisional review
When an application needs to be divided, the review of the divisional case includes the review of the divisional application and the original application after the division. The examination of successful applications shall be conducted in accordance with Articles 42 and 43 of the Implementing Rules of the Patent Law.
(l) According to the provisions of Article 43, paragraph 1, of the Implementing Rules of the Patent Law, the contents of the divisional application shall not exceed the scope recorded in the original application. Otherwise, the examiner should ask the applicant to make modifications. If the applicant does not make any modifications or the content of further modifications exceeds the scope recorded in the original application description and claims, the examiner may, in accordance with the provisions of Article 53 (3) of the Implementing Rules of the Patent Law, declare that the divisional application does not comply with the requirements. The divisional application shall be rejected on the ground that the provisions or modifications in Article 43, Paragraph 1 of the Implementing Regulations of the Patent Law are inconsistent with the provisions of Article 33 of the Patent Law.
(2) According to the provisions of Paragraph 2 of Article 42 of the Implementing Rules of the Patent Law, an application does not comply with Paragraph 1 of Article 31 of the Patent Law and Paragraph 34 of the Implementing Rules of the Patent Law. If the application is stipulated in Article 1, the applicant shall be notified to modify the application within the specified period. That is to say, within this period, the original application is changed into one invention or several inventions belonging to a general inventive concept. At the same time, the applicant should be reminded that if there is no reply within the time limit without justifiable reasons, the application will be deemed to have been withdrawn; if the original application is not changed into a single application without sufficient reasons, the examiner may argue that the application does not comply with Article 1 of the Patent Law. The application was rejected based on the provisions of paragraph 1 of Article 31. Similarly, if the divisional application of the original application does not comply with the unity requirements, it shall also be handled in the above manner.
(3) Except for the examination in accordance with Articles 42 and 43 of the Implementing Rules of the Patent Law, other examinations are the same as those for general applications.