Can a divisional application be filed without a restriction requirement?

Can a divisional application be filed without a restriction requirement?

While divisional applications are typically filed in response to a restriction requirement, they can be filed voluntarily without one. The MPEP 201.06 states:

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

However, the use of “often” implies that this is not always the case. Applicants may choose to file a divisional application voluntarily if they:

• Recognize distinct inventions in their application
• Want to pursue different claim scopes separately
• Need to address potential unity of invention issues proactively

It’s important to note that voluntarily filing a divisional application without a restriction requirement may affect the application of the safe harbor provision under 35 U.S.C. 121, which protects against double patenting rejections in certain cases.

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