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2.10.8 Dividing From a Provisional Application

Date Published

The Act does not allow for the filing of a divisional application from a provisional application. Where a provisional specification discloses more than one invention, an applicant may file more than one complete application, each being associated with the single provisional specification.

An application which purports to be a divisional application based on a provisional application, and which is filed within 12 months of the filing of that provisional application, can proceed on the basis that it has been 'associated' with the provisional application. However, during examination examiners should object that the application cannot proceed as a divisional application.  

In this situation, the applicant has the options of:

  • associating the application with the provisional application.  The application will then proceed as a standard application and the priority date will be the filing date of the provisional application.
  • allowing the application to proceed as an independent standard application, with the priority date being the filing date of the application.

The patent request should be amended to remove the request for divisional status and include, if appropriate, a statement of association to the provisional application.

[see also PERP code H1]

Where the application is filed more than 12 months after the filing of the provisional, an objection should be taken that it is not entitled to proceed as a divisional application or as an associated application.

[see also PERP code H2]

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