Study On Divisional Patent Application System In China

The patent system is usually constituted by three parts which are patent examination andapproval system, patent protection system and patent utilization system. The Divisional PatentApplication System is an important part of the patent examination and approval system. Atpresent, China’s Divisional Patent Application System has some problems, but did not cause theattention of scholars in the patent law of China. In recent years, the number of Chinese patentapplication grew pretty fast, at the same time the number of divisional patent application isbeyond calculation. The study on Divisional Patent Application System in China carries greatimportance to enhance the quality of Chinese patent examination and approval, as well asstrengthen China’s patent legal certainty and effectiveness.This thesis is divided into three parts of the introduction, main body and ending, and themain body is made of four chapters.Chapter I is the outline of the divisional patent application. It explains the background, theconcept, characteristics and role of divisional patent application, laying the logical starting pointof the full text. It points out that the purpose of the setup of divisional application in patentsystem is to prevent the partial loss of the application right for failing to meet the principle ofthe unity of invention in the process of patent application. This chapter also describes therelevant international rules of divisional patent application, the emergence and development ofour country’s divisional patent application system.Chapter II analyzes the situation and the problems of Divisional Patent Application Systemin China, pointing out that the five problems of Divisional Patent Application System in China, which respectively are that the stipulation of the filing date and the priority of the divisionalapplication is not accurate, that the premise of the divisional application is not consistent withthe practices, that the limitation on the time and content of divisional patent application is quiteloose, etc.Chapter III analyzes the divisional patent application system in Europe, U.S. and Japan, aswell as respectively compared them with the Divisional Patent Application System in China.European divisional application submission time’s limitation is relatively stringent, while thepatent and divisional applications may not claim the same subject-matter. American divisionalapplication is a divisional application in the real sense, but also stipulates the continuationapplication which lies in the freedom of applicants. Japan on the surface of the provisions of thedivisional application is more complicated, but the substance is not complicated, and someprovisions are worthy of our reference.Chapter IV sets out the recommendations for Divisional Patent Application System in China.Our law should clearly define the following items: the divisional application retains the originalapplication filing date; when the original application has the priority, divisional patent is alsoentitled to the priority; removal of the premise of the divisional application and furtherrestriction of the time and content of the divisional application. This chapter also proposes thesuggested specific provisions.