What is the best way to file a divisional application from the national phase application into Japan?

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In Japan, so called “Foreign Language Application” can be filed by which a patent application can be filed with specs/claims/drawings/abstracts in a language other than Japanese.

This “Foreign Language Application” can be used upon filing a divisional application from the national phase application into Japan.

By filing a divisional application as “Foreign Language Application” which is equivalent to PCT application, in many cases, the broadest basis for future possible amendment can be secured.

When an application is filed as “Foreign Language Application”, its Japanese translation must be filed within two months.  By filing this way, even if there is a mistranslation in the Japanese translation, it can be corrected based on the specs/claims/drawings/abstracts in another language filed upon filing an application as “Foreign Language Application”.  This is one of the key advantage of filing a divisional application as “Foreign Language Application”.

A request for examination also needs to be filed in connection with a divisional application.  The due date of filing a request for examination is 30 days from the filing of the divisional application (or three years from the retroactive filing date, whichever comes later).

After filing Japanese translation, an amendment is often filed to present claims to be examined in the prosecution of a divisional application.  Because the JPO fee for requesting examination is calculated based on the number of claims at the time of requesting examination, it is recommendable that the amendment be filed concurrently with or prior to requesting examination in order to reduce/optimize the associated JPO fee especially when the number of claims will be decreased by the amendment.  In case where the number of claims increases after requesting examination, the difference has to be further paid.

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