Legal Q&A
Q
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While studying about patents, I came across something called a divisional application, but I do not really understand it. It is said to be dividing one application and filing again, but I do not understand why one would need to do that. I am also confused about when it is needed. I would be truly grateful if an intellectual property attorney well-versed in the patent field could explain it in simple terms!
Intellectual property attorney
Answer
Published:
Author : Kuk Il KIM
Hello. This is an intellectual property attorney.
A divisional application is a system that allows claims not included in the decision of refusal to be separated out from a patent application (the original application) whose appeal against a decision of refusal has been dismissed, and to be filed anew, which is what this term refers to.
In this case, the divisional application is also granted a retroactive effect whereby the filing date of the existing original application is recognized as is.
Previously, even if some claims had patentability, if even a single ground for refusal was recognized, the entire trial was dismissed and all claims were refused together, which was a problem; and a split application was possible only within the trial request period, so if the timing was missed, there was no recourse.
Accordingly, for cases in which a trial is requested on or after April 20, 2022, a divisional application system was introduced that allows claims not refused to be filed separately.
The divisional application system is a useful means of expanding the opportunity to obtain a patent, but the application requirements or timing can be complex.
Therefore, in practice, to determine whether a divisional application is necessary and which claims it is advantageous to separate, consultation with an intellectual property attorney is important.
Because a small difference in filing strategy can have a large effect on the scope of rights, please note that it is advisable to respond systematically with the assistance of an intellectual property attorney from the early stage.

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Kuk Il KIM
T. 070-5117-2950
Experience as Chief Prosecutor at the Seoul High Prosecutors' Office · Attorney Specializing in Criminal Law/Drugs/Intellectual Property
Key Case Results
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