Go to MPEP - Table of Contents
A reissue application is an application for a patent to take the place of an unexpired patent that is defective in some one or more particulars. A detailed treatment of reissues will be found in Chapter 1400.
A later application for an independent or distinct invention, carved out of a pending application and disclosing and claiming only subject matter disclosed in the earlier or parent application, is known as a divisional application or "division." >The divisional application must claim the benefit of the prior nonprovisional application under 35 U.S.C. 121 or 365(c).< It may be filed pursuant to 37 CFR 1.53(b) or 1.53(d). 37 CFR 1.60 and 1.62 have been deleted as of December 1, 1997. The practices set forth in former 37 CFR 1.60 and former 1.62 have been incorporated into 37 CFR 1.53(b) and 1.53(d), respectively. Continued prosecution application (CPA) practice set forth in 37 CFR 1.53(d) has replaced the file wrapper continuing (FWC) practice set forth in former 37 CFR 1.62. Therefore, divisional applications previously filed under 37 CFR 1.60 or 1.62 should now be filed under 37 CFR 1.53(b) or 1.53(d). Both the parent and divisional applications must have at least one common applicant. The divisional application should set forth at least that portion of the earlier disclosure which is germane to the invention as claimed in the divisional application. In order to file a divisional application under 37 CFR 1.53(d), the prior nonprovisional application must be: (A) a utility or plant application that was filed under 35 U.S.C. 111(a) before May 29, 2000, and is complete as defined by 37 CFR 1.51(b); (B) a design application that is complete as defined by 37 CFR 1.51(b); or (C) the national stage of an international application that was filed under 35 U.S.C. 363 before May 29, 2000, and is in compliance with 35 U.S.C. 371. See 37 CFR 1.53(d)(1). Divisional applications of utility or plant applications filed on or after May 29, 2000 should be filed under 37 CFR 1.51(b). An application claiming the benefits of a provisional application under 35 U.S.C. 119(e) should not be called a "division" of the provisional application since the application will have its patent term calculated from its filing date, whereas an application filed under 35 U.S.C. 120, 121, or 365(c) will have its patent term calculated from the date on which the earliest application was filed, provided a specific reference is made to the earlier filed application(s). 35 U.S.C. 154(a)(2) and (a)(3).
In the interest of expediting the processing of newly filed divisional applications, filed as a result of a restriction requirement, applicants are requested to include the appropriate U.S. Patent and Trademark Office classification of the divisional application and the status and location of the parent application, on the papers submitted. The appropriate classification for the divisional application may be found in the Office communication of the parent application wherein the requirement was made. It is suggested that this classification designation be placed in the upper right hand corner of the letter of transmittal accompanying these divisional applications or in an application data sheet as set forth in 37 CFR 1.76(b)(3).
Use form paragraph 2.01 to remind applicant of possible *>divisional< status.
This application appears to be a division of Application No. [1], filed [2]. A later application for a distinct or independent invention, carved out of a pending application and disclosing and claiming only subject matter disclosed in the earlier or parent application, is known as a divisional application or "division." The divisional application should set forth only that portion of the earlier disclosure which is germane to the invention as claimed in the divisional application.
1. In bracket 1, insert the Application No.(series code and serial no.) of the parent application.
2. In bracket 2, insert the filing date of the parent application.
3. An application claiming the benefits of a provisional application under 35 U.S.C. 119(e) should not be called a "division" of the provisional application since the application will have its patent term calculated from its filing date, whereas an application filed under 35 U.S.C. 120, 121, or 365(c) will have its term calculated from the date on which the earliest application was filed, provided a specific reference is made to the earlier filed application(s), 35 U.S.C. 154(a)(2) and (a)(3).
A design application may be considered to be a division of a utility application (but not of a provisional application), and is entitled to the filing date thereof if the drawings of the earlier filed utility application show the same article as that in the design application sufficiently to comply with 35 U.S.C. 112, first paragraph. However, such a divisional design application may only be filed under the procedure set forth in 37 CFR 1.53(b) not under 37 CFR 1.53(d). Note that 37 CFR 1.60 and 37 CFR 1.62 have been deleted as of December 1, 1997. See MPEP § 1504.20.
While a divisional application may depart from the phraseology used in the parent application there may be no departure therefrom in substance or variation in the disclosure that would amount to "new matter" if introduced by amendment into the parent application. Compare MPEP § 201.08 and § 201.11.
For notation to be put on the file wrapper by the examiner in the case of a divisional application, see MPEP § 202.02.
Go to MPEP - Table of Contents