There appears to have been a recent change in practice at OAPI regarding the filing of voluntary divisional patent applications.

OAPI appears to be considering that requests for voluntary divisional patent applications must be made within the 30-month term provided for under the PCT for entry into the regional phase.  This effectively means that applicants are expected to decide at the time of PCT regional phase entry whether or not they also wish to file any voluntary divisional applications, which of course is not generally practicable. 

We do not fully agree with OAPI’s interpretation of the Bangui Accord in this regard.  Article 21 of the Bangui Accord specifies that “the applicant may amend the claims, the description, the drawings and the abstract prior to grant”.   We might extrapolate from this Article (although it is not explicitly stated as such) that a voluntary divisional application must similarly be filed merely prior to the grant of the parent patent. 

The law does expressly provide that OAPI should examine all applications for unity of invention, and states that an application “shall be restricted to a single principal subject”.  If it is found that more than one invention is disclosed, Article 24 of the Bangui Accord provides that appropriate amendments may be made and/or divisional application(s) filed, within six months from notification by OAPI.  It therefore appears that OAPI will allow applicants to file divisional applications in response to non-unity objections (within six months from the notification of said objections), but if the applicant wishes to file a voluntary divisional application, this must be done within the 30-month deadline for entry into the regional phase of a PCT application. 

We have presented arguments to OAPI to the effect that this 30-month deadline for voluntary divisionals is not workable in practice, and we are hopeful that OAPI will re-evaluate their standpoint on this issue.  However, in the meantime, the fate of existing divisional applications that were filed outside of this deadline unfortunately remains uncertain at this time. 

We will, of course, post further news as soon as there have been any developments in this matter.