5.1.1 Examination of Divisional Application
(2) Submission time of divisional application
The applicant shall file a divisional application no later than the expiration of two months (i.e., the time limit for going through the formalities of registration) from the date of receiving the Notification to Grant Patent Right to the initial application issued by the Patent Office.
After the expiration of the above time limit, or where the initial application has been rejected, or the initial application has been withdrawn, or is deemed to have been withdrawn and the right has not been restored, no divisional application shall be filed in general.
中国において、「最先の親出願(initial application)」に対する特許許可通知を受領した日より２か月以内に分割出願が可能。
拒絶が確定した場合、放棄された場合は、分割不可。
With regard to the initial application to which the examiner has issued the decision of rejection, the applicant may file a divisional application within three months from the date that the applicant receives the decision of rejection regardless of whether the applicant requests for reexamination or not.
The applicant, after requesting for reexamination or during the initiation of the administrative litigation against the reexamination decision, may also file a divisional application.
「最先の親出願(initial application)」に拒絶査定が出された場合、３か月以内であれば分割が可能（再審査を請求したか否かは関係なし）。
During the preliminary examination, where the filing date of a divisional application is not in conformity with the said provisions, the examiner shall issue the Notification that Divisional Application Deemed Not to Have Been Filed, and make a decision to close the case.
分割の出願日が不適法であれば、審査官は分割出願がファイルされなかったものとして審査を打ち切ることとなる。
Where an applicant files another divisional application based on an already filed divisional application, the submission date of another divisional application shall be examined according to the initial application.
「分割の子出願」を行なっている場合、子出願に関しても分割の時期的要件は親出願に従う。
Where the submission date of another divisional application is not in conformity with the above provisions, no divisional application shall be filed, however, with the exception that another divisional application is filed by the applicant according to the Office Action made by the examiner due to a unity defect in the divisional application.
上記「分割の子出願」に関する時期的要件の例外。発明の単一性の拒絶に対するOffice Actionに対してする分割出願は、例外的に取り扱われる。
Regarding this exception, the applicant, when filing another divisional application, shall submit a copy of the Office Action indicating the unity defect or of the Notification to Make Divisional Application issued by the examiner. Where the copy of the Office Action or of the Notification to Make Divisional Application in conformity with the provisions is not submitted, the application shall not be treated as exception.
Where the copy is not in conformity with the provisions, the examiner shall issue the Notification to Make Rectification notifying the applicant to make rectification. Where the copy is still not in conformity with the provisions after rectification, the examiner shall issue the Notification that Divisional Application Deemed Not to Have Been Filed, and make a decision to close the case.
上記例外の適用を受けるための手続き。このあたりは中国現地の代理人にしっかり対処してもらうこと。
[弁理士ＴＹ]
