§ 121. — Divisional applications.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 35USC121]
TITLE 35--PATENTS
PART II--PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS
CHAPTER 11--APPLICATION FOR PATENT
Sec. 121. Divisional applications
If two or more independent and distinct inventions are claimed in
one application, the Director may require the application to be
restricted to one of the inventions. If the other invention is made the
subject of a divisional application which complies with the requirements
of section 120 of this title it shall be entitled to the benefit of the
filing date of the original application. A patent issuing on an
application with respect to which a requirement for restriction under
this section has been made, or on an application filed as a result of
such a requirement, shall not be used as a reference either in the
Patent and Trademark Office or in the courts against a divisional
application or against the original application or any patent issued on
either of them, if the divisional application is filed before the
issuance of the patent on the other application. If a divisional
application is directed solely to subject matter described and claimed
in the original application as filed, the Director may dispense with
signing and execution by the inventor. The validity of a patent shall
not be questioned for failure of the Director to require the application
to be restricted to one invention.
(July 19, 1952, ch. 950, 66 Stat. 800; Pub. L. 93-596, Sec. 1, Jan. 2,
1975, 88 Stat. 1949; Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title IV,
Sec. 4732(a)(10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A-582; Pub. L.
107-273, div. C, title III, Sec. 13206(b)(1)(B), Nov. 2, 2002, 116 Stat.
1906.)
Historical and Revision Notes
This section enacts as law existing practice with respect to
division, at the same time introducing a number of changes. Division is
made discretionary with the Commissioner. The requirements of section
120 are made applicable and neither of the resulting patents can be held
invalid over the other merely because of their being divided in several
patents. In some cases a divisional application may be filed by the
assignee.
Amendments
2002--Pub. L. 107-273 made technical correction to directory
language of Pub. L. 106-113. See 1999 Amendment note below.
1999--Pub. L. 106-113, as amended by Pub. L. 107-273, substituted
``Director'' for ``Commissioner'' wherever appearing.
1975--Pub. L. 93-596 substituted ``Patent and Trademark Office'' for
``Patent Office''.
Effective Date of 1999 Amendment
Amendment by Pub. L. 106-113 effective 4 months after Nov. 29, 1999,
see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L. 106-113, set out
as a note under section 1 of this title.
Effective Date of 1975 Amendment
Amendment by Pub. L. 93-596 effective Jan. 2, 1975, see section 4 of
Pub. L. 93-596, set out as a note under section 1111 of Title 15,
Commerce and Trade.
Section Referred to in Other Sections
This section is referred to in sections 111, 154, 372 of this title.
