A divisional application is a complete application that is filed to divide one application or innovation patent (the parent) into two or more applications, and maintains the priority rights of the parent.

The parent application for a standard divisional application:

can be an application for a standard patent or an innovation patent;
may itself be a divisional application;
may be a PCT application; and
cannot be a provisional application.

It is also possible for a single divisional application to be made in respect of two or more different parent applications.

An innovation divisional application can only be made from an application for a standard or innovation that was filed, or otherwise has a date of patent before 26 August 2021, or from a granted innovation patent. Many of the requirements and information applicable to standard divisional applications also apply to innovation divisional applications, although there are some differences. For requirements and information specific to innovation divisional applications, see 5.6.10.6 Innovation Divisional Applications.

There are two reasons an applicant may choose to file a divisional application:

to protect a different aspect of the invention in a new application; or
as a continuation of the parent application because the parent application failed to gain acceptance.

Examiners should approach the examination of divisional applications in these situations differently. Examiners need to consider filing requirements around applicants and inventors, subject matter and time limits when examining a divisional application filed to protect a different aspect of the invention to ensure the application is entitled to maintain divisional status. When examining a divisional application filed as a continuation of the parent application because the parent failed to gain acceptance, a rigorous check is not required although examiners should still ensure the applicant requirements are met so that the application maintains divisional status.

The following sections explains the various requirements of divisional applications.

Applicant and Inventors

The applicant for the divisional application must be the same as the applicant for the parent application. An applicant includes a person entitled to make a request under s113. While an actual request does not need to be made, the evidentiary requirements to warrant a s113 direction need to be met (see 5.7.2.1 Form of the Request to Amend the Patent Request). Otherwise, an objection to the difference in applicants must be taken.

While changes of applicant should be made via s113, applicant details can also be changed via s104 amendments, therefore examiners should check for these amendments on the parent file when assessing divisional status of the child.

Where a parent application has joint applicants, all co-applicants need to apply for the divisional application. The one exception is where a co-applicant can provide evidence of an assignment of the other co-applicant's part interest in the parent application.

It is possible for a divisional application to have different inventors to those of the parent application. This applies even where the specifications of the parent and divisional are the same. Examiners should therefore assume that any information provided in this regard is correct.

Subject Matter

Subject matter that can be claimed in a divisional application is limited.

To derive priority from the parent and be entitled to divisional status, at least one claim of the divisional application must define an invention that is disclosed in the parent in a manner that is clear enough and complete enough for the invention to be performed by a person skilled in the art. If none of the claims are disclosed in a clear enough and complete enough manner in the parent application, then an objection to the application proceeding as a divisional should be taken.

If some (but not all) of the claims of the divisional which are not disclosed in a clear enough and complete enough manner in the parent, then these claims will not be entitled to the earlier priority date. In this case the prior art base for the claims not entitled to the earlier priority date will be different, such that the parent will form part of the prior art base and a top-up search to identify any relevant prior art published in the intervening period should be considered (see also 5.6.10.2 Priority Entitlement). If no relevant prior art published in the intervening period is identified, the applicant may still be informed (in a note in the examination report) of the change in priority date of the relevant claims.

Dividing From a Provisional Application

A divisional application cannot be filed from a provisional application.

During examination examiners should object that the application cannot proceed as a divisional 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.

In this situation, the applicant has the options of:

proceeding the application as a standard application, associated with the provisional application and taking the filing date of the provisional application as the priority date of the standard application; or
proceeding the application as an independent standard application, with the priority date being the filing date of the application.

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

Statement of Entitlement

A correct Statement of Entitlement is required to maintain divisional status. It is the responsibility of CEG to check this, and object if appropriate, at filing.

Where the applicant of the divisional application is the same as the applicant of the parent application, the applicant does not need to state their entitlement to make the divisional application.

Where this is not the case, the applicant must state that the person nominated for the grant of the patent is entitled to make a request under s113 in relation to the parent application. A statement provided with the request for examination will suffice and must be filed for the application to proceed as a divisional application.

Patent Request

The patent request must indicate that the application is a divisional application under s79B and state the number of the parent application.

CEG will check that these requirements have been met at filing. However, where examiners become aware of any issues during examination, for example, the parent application number is incorrect, these should be raised in the report.

Where a request does not invoke s79B, but there is evidence on file to suggest that the applicant intended to invoke the provision (for example, the applicant indicates that the application is a divisional in an accompanying letter), the application should be treated as a divisional application and an objection taken to the request.

Amended Reasons

Amended Reason	Date Amended
Page updated to clarify that it is possible for divisional applications to contain claims having different priority dates. Further clarification also provided as to when an application is not entitled to divisional status (i.e. when none of the claims are directed to an invention disclosed in the parent). IIP317	05 Aug 2024
	18 Oct 2023
Published for testing	06 Jun 2023

5.6.10.1 Requirements to Claim Divisional Status

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