What is a divisional application?

A divisional patent application is a patent application that is derived from an earlier filed patent application – the “parent” application.

A divisional application inherits the priority date of the parent application or the filing date if no priority was claimed.  This means that a divisional application will have the same patent term as the parent application, irrespective of when the divisional application is filed – that is, 20 years from the filing date of the parent application.

Why are divisional applications filed?

Divisional applications are most often filed when the claims of an earlier application are considered to relate to more than one invention.

An applicant may file a divisional application to protect an aspect of an invention not covered by the claims of the earlier application or if they wish to pursue a broader scope of protection than that of the earlier application.

An applicant may also file a divisional application as a safeguard in case the parent application is refused or if the parent is likely to be subject to opposition or revocation proceedings once granted.

What are the requirements for filing a divisional application?

A divisional patent application must be filed by the same applicant (or their successor in title).

A divisional application can only contain subject matter that was disclosed in the original parent application.

Divisional applications must be filed while the earlier application is pending, i.e., before the earlier application has been refused, withdrawn by the applicant, or granted.

Prosecuting a divisional application

Although a divisional application will be accorded the same filing date as the parent application, it will be treated as a separate, new application. Therefore, the divisional application will be searched, published and examined on its own merits irrespective of the fate of the parent application.

Wilson Gunn can advise on all aspects of intellectual property protection. Please get in touch to speak to a member of our team about divisional applications.

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