I. Definition of Divisional Patent Applications

A divisional patent application refers to a process where an applicant splits an existing patent application into two or more separate applications. This is applicable when the original application contains multiple inventions, utility models, or industrial designs. The applicant must file the divisional application within two months from the date of receiving the notification of patent grant from the State Patent Administration.

However, a divisional application cannot be filed if the original patent application has been rejected, withdrawn, or deemed withdrawn. Additionally, the category of the original application cannot be altered in the divisional process.

II. Benefits of Filing a Divisional Application

1. Retaining the Original Filing Date and Priority Date

· A divisional application retains the filing date of the original application.

· If the original application claims priority, the divisional application can inherit the same priority date, helping to avoid potential prior art disclosures.

2. Increasing Patent Portfolio Size

· A single patent application containing multiple inventions can be split into multiple patents, strengthening the applicant’s patent portfolio.

· This enhances eligibility for government incentives, technology grants, and high-tech enterprise certifications.

3. Improving Patent Grant Success Rate

· Eliminating unfavorable elements: During the patent rejection review process, applicants can remove problematic claims, improving the likelihood of approval.

· Addressing unity of invention issues: If the original application is rejected for lack of unity, filing separate applications ensures compliance with patent law, increasing the probability of grant.

4. Fairer Patent Examination Process

· Divisional applications are typically assigned to different examiners, potentially eliminating examiner bias.

· Since patent examiners are randomly assigned, a divisional application offers the opportunity to have the patent reviewed by a different examiner, increasing approval chances.

5. Strategic Patent Secrecy and Competitive Advantage

· Filing a series of patents together and strategically splitting them later can mislead competitors, creating obstacles to protect core technologies.

6. Adjusting the Scope of Patent Protection

· Applicants can redefine the scope of claims, potentially securing broader protection.

· Previously rejected claims can be reintroduced and reformulated in divisional applications.

7. Enhancing Patent Value

· Divisional applications refine technical specialization and specificity, increasing the commercial value of a patent.

· This provides competitive advantages and additional monetization opportunities for enterprises.

8. Accelerating the Examination Process

· Since a divisional application is based on an existing patent examination history, it may undergo a faster review process, leading to quicker patent grants.

III. Legal Implications of Divisional Applications

1. Priority Claims and Legal Deadlines

· A divisional application does not automatically inherit the priority of the original application.

· If a priority claim is not made at the time of divisional filing, the original patent may impact the novelty of the divisional application, leading to rejection.

· To restore lost priority, applicants may file a request under Article 6 of the Patent Law Implementation Rules and pay a restoration fee.

2. Uncertainty in Patent Scope

· Divisional applications may create long-term uncertainty regarding the scope of patent protection.

· The public may be unable to accurately determine the extent of legal protection if further divisional applications are pending.

· This uncertainty increases the risk of potential unintentional patent infringement.

3. Potential Legal Disputes

· Divisional applications can lead to legal challenges, such as:

o Exceeding the scope of the original application

o Unity of invention issues

· If challenged, the divisional application may be rejected or invalidated, causing legal complications for the applicant.

IV. Market Impact of Divisional Applications

1. Increasing Patent Holdings and Government Funding

· Filing divisional applications enables companies to obtain multiple patents, increasing eligibility for government funding, tax incentives, and grants.

2. Strategic Patent Secrecy

· Applicants can strategically delay disclosing core technologies by filing divisional applications, making it harder for competitors to anticipate future patent strategies.

3. Leveraging Examination Differences for Maximum Benefit

· Different examiners may interpret legal standards and technical claims differently.

· Applicants can use divisional applications to obtain varied examination outcomes, potentially securing multiple grants for a single invention.

4. Expanding Patent Protection Scope

· Through continuous filing and modification, applicants can:

o Obtain broader protection for previously unclaimed technical features

o Combine multiple divisional applications to create a comprehensive protection strategy

V. Requirements for Filing a Divisional Application

1. Application Documents

· The divisional application must explicitly state that it originates from an existing application.

· The following details must be provided:

o Original application date

o Original application number

o Title of the original invention

2. Content Restrictions

· The divisional application must not exceed the scope of the original patent disclosure.

· If it does, it may be rejected under Article 49(1) of the Patent Law Implementation Rules or Article 33 of the Patent Law.

3. Compliance with Patent Law

· The description and claims of the divisional application must meet all legal requirements for completeness and accuracy.

Conclusion

A well-planned divisional application strategy maximizes patent protection while addressing legal and technical concerns. Applicants should carefully evaluate the advantages and risks to ensure optimal intellectual property protection.