Study On Divisional Patent Application System In China

In recent years,as the applicant and the public have more and more digging deeper into the patent system,the applicants pay more and more attention to the use of the patent division application system to protect invention creation.Many companies regard Patent division application system as one of the important means for the globalization of patents.However,with the increase in the number of patent divisions in China,the patent divisional application system has exposed many problems.According to Chinese laws and regulations,the precondition for the applicant to initiate a divisional application is that there are two or more inventions for the original application,and there is no provision for whether the original application that satisfies the principle of unity is allowed to file a divisional application.Secondly,the filing time of the divisional application is too loose.The applicant can intentionally make the original application suffer from a single defect,and use the exception requirement for the submission time of the divisional application to continuously submit the divisional application,resulting in a long period of uncertainty in the protection of the patent.It is difficult for the public to predict the scope of patent protection.although it is stipulated that the divisional application should be different from the original application for protection,the concept of "different inventions" is not stipulated,which results in the lack of clear restrictions on the scope of protection of divisional applications.China's patent application system needs to be improved.The United States,Europe,and Japan have established a complete divisional application system,which can provide reference to the improvement of China's divisional application system:First of all,the filing of a patent division application should not be based on the precondition of a single defect in the original application.At present,China's preconditions for filing divisional applications are too restrictive and it is not conducive to encourage applicants to initiate divisional applications on their own initiative,which is not conducive to protection.The interests of the applicant are also not conducive to the development of the patent system in China.Second,restricting the submission time of divisional applications has become a trend.After analyzing the rules for the submission of time in the United States,Europe,and Japan,refer to Japan's regulations on the submission of divisional applications to amend the legal provisions of the country;finally,Proposal to define in detail the scope of protection of divisional applicationsSpecifically,it is recommended that the following amendments be made to the relevant provisions of the "Detailed Rules for the Implementation of the Patent Law"and the "Examination Guide" in the country.It is recommended to delete the preconditions for the active divisional application and make it clear that the original applicant is allowed to submit the divisional application on its initiative when the principle of unity is satisfied.It is suggested to limit the submission time of divisional applications and cancel the timing of the division of "during the review proceedings against the administrative review period".It is recommended to clarify the scope of the divisional application.The divisional application should not belong to the same invention as the original application.