Divisional registration

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A divisional application is in German and European patent law a patent application previously filed a co-pending patent application (the contents of parent application ) was taken and the time rank (filing date and priority claim) is awarded to the parent application.

Legal basis

In the German patent law , § 39 39 PatG is the basis. In the European Patent Convention are Article 76 EPC and Rule 36 the foundation.

Regulation content, purpose

The regulations in German and European law are the same in many respects. A divisional application can be filed for a parent application as long as the parent application is still pending, ie not rejected or withdrawn and the patent has not been granted. The content of the divisional application must remain within the scope of the content of the parent application. In return, the divisional application is given seniority to the parent application.

The purpose of a divisional application is to add content to the patent examination that was already in the parent application but could not be examined there. The most common reason for this is a lack of uniformity. A patent application can contain several different inventions. In an application (the parent application), however, only one invention can be examined and patented (requirement of uniformity). One or more other inventions cannot be examined and granted in the parent application. A divisional application must be submitted for them.

details

The process of division

In the German procedure, a non-specific declaration of division must be submitted in the parent application. The complete documents of the divisional application must be submitted at the same time or within three months.

In the European procedure, the file number of the parent application only needs to be given when filing the divisional application.

cascade

It is possible to register a divisional application from within a divisional application.

fees

The same fees have to be paid for the divisional application as for the parent application, including the annual fees accrued up to now . The European Patent Office also charges a division fee.

Changes

German law

In German law, a patent could also be divided in opposition proceedings. However, this option has been deleted.

European Law

The deadlines for filing divisional applications have already changed several times in the history of European patent law, in particular in the 1970s and on April 1, 2010.

  • Situation before April 1, 2010: Before April 1, 2010 divisional applications could only be filed if the corresponding parent application was still pending. This means that a divisional application was no longer possible as soon as the reference to the grant was published in the European Patent Bulletin.
  • Situation since April 1, 2010: On April 1, 2010, changed rules for filing European divisional applications came into force. These rules stipulate a strict 24-month deadline for submitting divisional applications from the delivery of the first examination report from the examination department.
  • Changes as of April 1, 2014: In accordance with the resolution of the Administrative Council of the European Patent Organization of October 16, 2013, Rules 36 , 38 and 135 of the Implementing Regulations EPC relating to the filing of divisional applications will be changed. The new rules will apply to all European divisional applications filed after April 1, 2014.

In accordance with the applicable rules, divisional applications can be re-filed for all pending European patent applications. The 24-month deadlines for filing divisional applications are thus de facto abolished again. In addition, an additional official fee will be introduced for submitting divisional applications of the 2nd generation and each subsequent generation.

literature

  • Georg Benkard, European Patent Convention. Commentary , 2nd edition, Munich 2012, Verlag CH Beck, ISBN 978-3-406-60579-6
  • Friedrich-Karl Beier, Kurt Haertel , Gerhard Schricker , Joseph Straus (eds.): European Patent Convention, Munich Community Commentary , in deliveries, Carl Heymanns Verlag 1984 ff. (2005 to 28th delivery), ISBN 3-452-19412-4
  • Matthias Brandi-Dorn, Stephan Gruber, Ian Muir: European and International Patent Law . 5th edition, CH Beck, 2002, ISBN 3-406-49180-4
  • Lise Dybdahl: European patent law. 2nd edition, Carl Heymanns Verlag, 2004, ISBN 3-452-25682-0
  • Margarete Singer / Dieter Stauder (eds.): The European Patent Convention. A Commentary . 2 vol., 3rd ed., Thomson / Sweet & Maxwell / Carl Heymanns, Cologne, Berlin, Berlin, Bonn, Munich 2003.
  • Margarete Singer / Dieter Stauder: European Patent Convention , 5th Edition, Carl Heymanns Verlag, 2010, ISBN 978-3-452-27135-8

Web links

Individual evidence

  1. ↑ CA / 145/08, Munich, October 10, 2008 (PDF; 36 kB), pages 2 to 3 "Chapter III. Development of the Implementing Regulations regarding Divisional Applications"
  2. ↑ Website of the European Patent Office, changed deadlines for filing divisional applications ( Memento of the original dated June 3, 2009 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , News, April 3, 2009. As of October 24, 2009. @1@ 2Template: Webachiv / IABot / www.epo.org
  3. ↑ Decision of the Administrative Council of October 16, 2013 on the amended Rules 36, 38 and 135 of the Implementing Regulations to the EPC ( Memento of the original of October 27, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.epo.org
  4. ↑ Protocol of the Administrative Council's Meeting of 16 October 2013 (CA / 89/13) (PDF; 45 kB)