Divisional Patent Applications in China: Deadlines, Dates Kept and Fees
The European Patent Office has just reminded applicants that a divisional must pay renewal fees already paid on the parent (EPO: Divisionals Must Pay Fees Already Paid on Parent). China has its own rules on divisional applications: when you can still divide, what dates the divisional keeps and when a further division is allowed. For foreign applicants the question usually comes up when CNIPA raises a unity objection and asks you to cut claims you still want to protect. This guide follows the current Implementing Regulations of the Patent Law, in force since 20 January 2024. It is general information; a specific case needs professional advice.
When a divisional is needed
One application may cover only one invention, or several inventions linked by a single general inventive concept and technically related (Patent Law, Article 31; Implementing Regulations, Rule 39). A design application may contain no more than 10 similar designs (Rule 40).
If CNIPA finds an application does not meet these rules, it asks the applicant to amend within a set period; if there is no reply in time, the application is deemed withdrawn (Rule 48). Subject matter cut out to overcome the objection can be filed as a divisional. Applicants can also divide on their own initiative.
The deadline
Under Rule 48, a divisional must be filed before the period in Rule 60(1) expires: two months from receipt of the notice of grant, the window for completing registration formalities. A notice of grant does not end the chance to divide; you can still file within those two months.
No divisional can be filed once the parent has been rejected, withdrawn or deemed withdrawn.
A divisional cannot change the type of the parent: an invention application divides into invention applications, not utility models.
What the divisional keeps
Under Rule 49, a divisional keeps the parent's filing date and, if the parent claimed priority, its priority date. Anything published after that date cannot be cited against it.
The price is that it cannot go beyond what the parent disclosed. Matter not in the parent's description and drawings cannot be added. The request must state the parent's application number and filing date.
Divisionals of divisionals
For a further divisional filed from a divisional, the timing is normally judged by the original parent. The exception is where CNIPA raised a unity objection against the divisional itself: a further division to overcome it is judged by whether the divisional's own examination is still pending (Patent Examination Guidelines as amended in 2019).
Fees
A divisional completes its own formalities and pays its own filing fees. Fees whose deadlines, counted from the parent's filing date, have already passed must be paid within the period CNIPA sets; follow the fee notice for the amounts and dates.
Annuities after grant run by years counted from the parent's filing date. The later a divisional is granted, the later the year in which it starts paying annuities, and the higher each annual fee. That differs from the EPO's rule on paying the parent's renewal fees, but the logic is similar: the divisional keeps the parent's date, and its costs follow that date.
Using divisionals well
When you receive a unity objection, keep the claims that cover your main product in the parent to get it granted quickly, and divide the rest.
When the parent is close to grant, check whether the description discloses solutions not yet claimed that a competitor is using. If so, divide before the registration deadline.
For a design application with more than 10 similar designs, divide out the extra designs; they keep the parent's filing date. See Design Patents in China: Partial Designs, GUIs, Similar Designs and the Six-Month Grace Period.
If someone else has patented your invention, that is an ownership dispute, not something a divisional can fix. See Someone Patented Your Invention in China: Ownership Action, Inventorship or Invalidation?
Frequently asked questions
The parent has already been granted and published. Can we still divide? No. The window closes when the two-month registration period after the notice of grant expires, which is before publication of the grant.
Will the divisional be granted faster than the parent? Not necessarily. It joins the examination queue, and an invention divisional needs its own request for substantive examination.
Can a utility model application be divided? Yes, if it contains two or more utility models. The divisionals remain utility models.
J&C Intellectual Property Agency, founded in 2008, is a CNIPA-recorded trademark agency and a member of the China Trademark Association. We help foreign businesses protect their brands and IP in China.
