What is the time limit for filing a divisional application?

What is the time limit for filing a divisional application?

There is no specific time limit for filing a divisional application, but there are important considerations that effectively create a practical time frame:

1. Parent Application Status: The divisional application must be filed while the parent application is still pending. Once the parent application is either abandoned or issued as a patent, it’s no longer possible to file a divisional from it.
2. Priority Claim: To claim the benefit of the parent application’s filing date, the divisional must be filed within the time periods specified in 35 U.S.C. 120, 121, 365(c), or 386(c).
3. Patent Term: The 20-year patent term is calculated from the earliest non-provisional U.S. filing date. Filing a divisional later in the parent’s pendency will result in a shorter potential patent term for the divisional.

The MPEP 201.06 states:

A divisional application is often filed as a result of a restriction requirement made by the examiner.

While this doesn’t specify a time limit, it implies that divisional applications are typically filed in response to office actions during the examination process. Applicants should consider filing a divisional promptly after receiving a restriction requirement to ensure they don’t miss any deadlines and to maximize the potential patent term.

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