Intellectual property attorney, what is a divisional application?

Hello. This is an intellectual property attorney.

A divisional application is a system that allows claims not included in the decision of refusal to be separated out from a patent application (the original application) whose appeal against a decision of refusal has been dismissed, and to be filed anew, which is what this term refers to.

In this case, the divisional application is also granted a retroactive effect whereby the filing date of the existing original application is recognized as is.

Previously, even if some claims had patentability, if even a single ground for refusal was recognized, the entire trial was dismissed and all claims were refused together, which was a problem; and a split application was possible only within the trial request period, so if the timing was missed, there was no recourse.

Accordingly, for cases in which a trial is requested on or after April 20, 2022, a divisional application system was introduced that allows claims not refused to be filed separately.

The divisional application system is a useful means of expanding the opportunity to obtain a patent, but the application requirements or timing can be complex.

Therefore, in practice, to determine whether a divisional application is necessary and which claims it is advantageous to separate, consultation with an intellectual property attorney is important.

Because a small difference in filing strategy can have a large effect on the scope of rights, please note that it is advisable to respond systematically with the assistance of an intellectual property attorney from the early stage.