Detailed Answer with Legal References
Statement a)
True - Under Art. 76(1) EPC, a divisional can be filed from any earlier European patent application that is still pending. DIV-1 was still pending when DIV-2 was filed. Case law (G 1/05, G 1/06) confirms that a divisional application may itself serve as the “earlier application” for a further divisional. Therefore, DIV-2 is a valid divisional of DIV-1 from a formal standpoint.
Statement b)
False - Art. 123(2) EPC prohibits amendments adding subject matter extending beyond the content of the application as filed. The original description states that the 33 patches are essential for achieving the technical effect. Broadening to “any number of patches” would remove an essential feature and constitute added subject matter. No generalisation to other numbers is disclosed in EP-1 or DIV-1.
Statement c)
False - Art. 76(1) EPC requires that the subject matter of a divisional be directly and unambiguously derivable from the earlier application as filed. The stitching method, while disclosed in EP-1, was not disclosed in DIV-1. Therefore, it cannot be validly claimed in DIV-2 without infringing Art. 76(1) EPC.
Statement d)
True - Since DIV-2 contains claims to the stitching method, which was not disclosed in DIV-1, it currently violates Art. 76(1) EPC. According to G 1/05 and G 1/06, such amendments to remove unallowable subject matter can still be made even after the parent application is no longer pending. DIV-2 must be amended to delete any content relating to the stitching method.
Exam Tip
Always check the disclosure in each link of the divisional chain. Subject matter must be disclosed in both the divisional itself and the immediate parent to comply with Art. 76(1) EPC.
Essential features in the original disclosure cannot be omitted without risking an Art. 123(2) EPC objection.
G 1/05 and G 1/06 are key references for divisional practice — they clarify that amendments can still be made to remove subject matter added in violation of Art. 76(1) EPC even after the parent is no longer pending.
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