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Q15. When a Divisional Application Can Be Filed

Q15. When a Divisional Application Can Be Filed
(1) When can a divisional application be filed in Japan?
(2) Can a divisional application be filed even after the expiry of the time period for filing a Request for Examination in its parent application?

A15. (1a) In the Patent Law, Art.44 regarding a divisional application was amended and 6
has been effective since April 1, 2007. It is applied to not only applications whose parent applications were filed before April 1, 2007, but also those filed on or after April 1, 2007. The time period in which a divisional application can be filed depends on when the parent application was filed. The details are explained below.
(1b) In an application filed before April 1, 2007, a divisional application can be filed during the time period when an amendment can be filed (Art.44(1), see Fig.23-A).
That is, the time period is either one of the followings:
(1b-i) Before an applicant receives the first Office Action, the applicant can file a divisional application at anytime;
(1b-ii) After an applicant receives an Office Action, the applicant can file a divisional application within the time period designated by the Examiner to file a written opinion against the Office Action; and
(1b-iii) After a Decision of Rejection is made, an applicant can file a divisional application at the same time of filing of a Notice of Appeal against the Decision of Rejection. The Notice of Appeal can be filed within 3 months from the date when the applicant received the Decision of Rejection.
(1c) In an application filed on or after April 1, 2007, a divisional application can be filed even during the following time period (Art.44(1), see Fig.23-B) in addition to the aforementioned time period, (1b-i) to (1b-3) allowed for an application filed before April 1, 2007 (Art.44(1)(i));
(1c-i) After a Decision of Rejection is first issued, an applicant can file a divisional application within 3 months from the date when the applicant received the Decision of Rejection, (Art.44(1)(iii)); and
(1c-ii) After an application is granted in the examination procedure (not in the Appeal procedure), an applicant can file a divisional application within 30 days from the date when the applicant received the Decision of Grant (Art.44(1)(ii)).

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Fig.23-A [In the case of a divisional application whose parent application was filed before April 1, 2007]

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Fig.23-B [In the case of a divisional application whose parent application was filed on or is filed after April 1, 2007]

(2) Yes, a divisional application of the parent application can be filed even after the expiry of the time period for filing the Request for Examination. In this case, an applicant can file a Request for Examination of the divisional application within 30 days from the actual filing date of the divisional application (Art.48-3(2)) (See Fig.23-C).

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Fig.23-C