New Rules of Revised Examination Guidelines
for Filing Divisional Applications
 


China, the applicant is entitled to file a further divisional application based on a divisional application and the further divisional application. Such a further divisional application now (prior to July 1, 2006) can be filed at any time when the existed divisional application is pending or within two months after the date when the existed divisional application is granted, either at the applicant's initiative or at the examiner's request. However, the new Guidelines that will become effective as of July 1, 2006 set forth a restriction on such a divisional filing based on divisional application at the applicant's initiative.

According to the new Guidelines, to file a divisional application of applicant's volition, the following pre-conditions should be met according to the new Guidelines:

Condition 1. the current application from which a divisional application is to be derived should be in a status of either pending or having been granted but it is still within two months of the date of grant decision; AND

Condition 2. if the current application per se is a divisional application, the original parent application (i.e. the first root application from which the current application was derived directly or indirectly) is also either pending or within two months of the date of grant decision.

In other words, as of July 1, 2006, if the original parent application is issued a patent or withdrawn, it is not allowed to derive a further divisional application from its divisional application unless at the examiner's request due to the lack of unity.

That is, despite of the above two conditions for voluntary filing of divisional applications, the status of the original parent application will not affect the applicant to file a further divisional application based on a divisional application according to the examiner's objection to the unity of the divisional application.

On the other hand, the new Examination Guidelines also outline some vague points about the time when a divisional application could be set forth.

Under the new rules, it is possible to file a divisional application within the term of three months for appeal after a rejection decision is received though there is no Re-Examination Request is submitted.

And further more, if the application is put during the Re-examination procedure or Court appeal procedure, it is also possible for the applicant to attend to filing divisional application.