The Countermeasures For The Abuse Of Patent Divisional Application System

As the number of divisional applications increasing year by year,there is a phenomenon that the applicants abuse the divisional application system to achieve the purposes of repeated applications,delaying the confirmation time,etc.,and there are also a large number of divisional applications with similar protection scope and overlapping in a short period of time.This abuse of the divisional application system wastes examination resources and results in inconsistent examination results,which is not conducive to improving the quality of examination and shortening the examination cycle.How to further standardize the current divisional application system based on the provisions of the patent law,the detailed rules for the implementation of the patent law and the patent examination guidelines,and find the balance of interests between the applicant and the public so as to improve the examination quality and efficiency is a difficult problem currently facing us.In order to find out the reasons for abusing the divisional application system,the patent examination guide stipulates that "the original application and the divisional application claims after the divisional application shall require the protection of different inventions respectively",but it does not give a specific explanation for "different inventions" and does not give any subsequent operation means for handling the violation of this provision.In addition,the current divisional application system for patent does not examine the motives of the applicants for divisional application,thus providing an opportunity for the applicants to abuse the divisional application system.It is suggested that the requirements of the divisional application claims in the patent examination guide be amended to read: "the scope of protection of divisional application claims shall not be the same as that of claims submitted in the original application." The claims submitted in the original application include the claims submitted in the pre-registration stage of authorization,the review stage after rejection and the litigation stage when the review decision is not satisfied ".In combination with the reality of China's patent divisional application system,it is proposed to increase the penalty for violation of claim requirements."If the divisional application does not meet the requirements of the claim,the original application date shall not be retained on the divisional application date,and the actual divisional application date shall be taken as the application date.If the reasons for rejection notified in the examination of other applications have not been overcome in the divisional application,the reasons for rejection are deemed to have been notified.The other applications are those that satisfy any of the following relationships with the divisional application:(1)The divisional application is one of the divisional application groups derived from the other applications;(2)The other application is one of the divisional application groups derived from the divisional application;(3)The divisional application and other applications belong to the divisional application group derived from another patent application ".And require the applicant to explain the motive when applying for division.This is conducive to saving examination resources,shortening the examination cycle,avoiding inconsistent examination results and controlling the abuse of the divisional application system.