Question:
For a divisional application filed in China, is the deadline for requesting substantive examination always two months from the date on which the divisional application is filed? What provision governs this period?
Answer:
The statement that substantive examination must always be requested within two months of filing a divisional application is inaccurate.
Under the Guidelines for Patent Examination, the period for requesting substantive examination is three years from the filing date of the parent application, or its priority date where applicable. If that period has already expired when the divisional application is filed, or fewer than two months remain, the applicant may request substantive examination within two months of filing the divisional application or within 15 days of receiving the Notice of Acceptance.
The relevant provision is Part I, Chapter 1, Section 5.1.2 of the Guidelines for Patent Examination. It states that statutory periods applicable to a divisional application, such as the period for requesting substantive examination, are calculated from the filing date of the parent application. Where a period has expired, or fewer than two months remain after the divisional application is filed, the applicant may complete the relevant formalities within two months of filing the divisional application or within 15 days of receiving the Notice of Acceptance.