What is the time limit for filing a divisional application?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
There is no specific time limit for filing a divisional application, but there are important considerations that effectively create a practical time frame:
- 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.
- 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).
- 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.
For more information on Divisional application, visit: Divisional application.
For more information on filing deadline, visit: filing deadline.