Thomas lee Chengjun, Minister of Intellectual Property.
Practical field
Communication/computer/automation/machinery, etc
In this issue, I want to talk to you about "dividing the case". Speaking of "case division", I have to pretend to know some "English".
The English name of "divisional application" is "division application", which means that a patent is divided into two, three and four pieces. I see. Here comes the problem. How should we divide the case?
What time?
Patents are not divided if you want, but if you want. How do you say this?
Let's take a look at the original words in the review guide: "The applicant shall file a divisional application at the latest before the expiration of the two-month period from the date of receiving the notice that the original application was granted the patent right (that is, the time limit for handling the registration formalities). After the expiration of the above-mentioned time limit, or the original application has been rejected, or the original application has been withdrawn, or the original application is regarded as withdrawn and its rights have not been restored, it is generally not allowed to file a divisional application. "
Translated into vernacular, this case can be divided before it is "closed".
How come?
When it comes to "division of cases", we can't help but mention "singleness". The two of them are like a chicken and an egg.
"Uniqueness" means that an application for a patent for an invention or utility model should be limited to one invention or utility model, and two or more inventions or utility models belonging to a general inventive concept can be filed as one application.
However, it is stipulated that in practical application, for the sake of convenience, cost, patent layout and other factors, it is often considered to include multiple patented technologies in one patent application. Subsequent applicants can apply for division by themselves, or divide the case after receiving the review opinions requesting division during the review process.
It is worth noting that the original application is generally called the "mother case" and the separated "sub-case" is generally called the "sub-case". From the appellation, we can also know that the two applications are actually related by blood, so the separate "sub-case" can inherit the application date of the "mother case". If the parent case enjoys priority, the "child case" can also inherit the priority date of the "parent case". It can be seen that the sub-case is not a new application, but a part of the original application. Therefore, Article 43 of the Detailed Rules for the Implementation of the Patent Law stipulates that the original filing date can be retained for divisional applications, and the priority date can be retained for those who enjoy priority.
Why?
Although the division of cases is mainly based on the problem of oneness, how to effectively use this procedure is the focus I want to talk about! But if there is no single question, what is the need for the applicant to file a division?
The key is that the claims can be modified or rewritten in the process of division, so in the process of continuous development and evolution of products, the effective use of "division" can make the divided claims and products look more like wood!
Small goals are there, how to achieve them?
There must be a premise! What is the premise? Iron Law: Article 33 of the Patent Law! This clause is powerful, from active revision, to revision in the process of replying to review opinions, to division of cases, and then to revision in the process of invalidation. This clause has always been the "bottom line" that all kinds of modification opportunities and methods can't touch, that is, "it shall not exceed the scope recorded in the original specification and claims".
With this "bottom line", the scope of the description of the mother case is simply too critical. How to make a good description of the "content layout"?
Simply put, an agent who can't "say one thing" according to the content given by the inventor is not a good agent. Nothing to talk to technicians, learn more about the evolution of technology, the future direction and trend of product research and development. After understanding, how to reflect it in the manual content? Common extensions include: extension of implementation or application scenarios, extension of equipment, extension of execution processes or steps, and the above alternatives. These are all aspects that can be built. With these contents at the bottom, we can have enough confidence to modify or even rewrite the claim in the subsequent division process, and maybe even directly "bump into the face" with the products that appear later!
To sum up, the program should be clear, the writing style should be excellent, and the ability of "writing" should be fully amplified by making good use of the program to be a qualified little expert!