Legal framework
A European divisional application is governed primarily by Article 76(1) EPC. It may be filed only for subject-matter that does not extend beyond the content of the earlier (parent) application as filed. In so far as this requirement is complied with, the divisional is deemed to have been filed on the filing date of the earlier application and enjoys any priority right.
If, as filed, the divisional contains subject-matter additional to that contained in the parent as filed, the EPO practice (reflecting Enlarged Board case law) is that the divisional can be amended later so that it no longer extends beyond the parent’s disclosure.
Answers to the statements
a) “Common subject-matter gets the parent date; the rest gets the divisional date.” — False
The EPC does not provide a mechanism to “re-date” only the non-compliant part of a divisional to its actual filing date while preserving the earlier date for the rest. Instead, the presence of extra subject-matter is simply an Art. 76(1) EPC objection: the excess must be removed (or the application will not proceed to grant).
So there is no legally recognised split of filing dates inside one divisional application.
b) “EP-D is deemed to have 10 June 2025 as its filing date.” — False
EP-D’s actual filing date is 10 June 2025, but the legal “deemed filing date” concept for divisionals is tied to compliance with Art. 76(1). The EPC does not say that a non-compliant divisional becomes an “independent application” deemed filed on its actual filing date instead. The correct consequence is: amend to comply (possible), otherwise refusal for non-compliance.
c) “It is mandatory for EP-D to have the same set of claims as EP-P.” — False
A divisional is not required to copy the parent’s claims. The EPO explicitly recognises that the claims of a divisional need not be limited to subject-matter already claimed in the parent; the legal boundary is the parent’s disclosure as filed, not the parent’s claim wording.
d) “During examination the applicant can amend EP-D to remove the extension beyond EP-P, provided EP-D also stays within its own content as filed.” — True
This is correct. The EPO Guidelines state that if a divisional as filed contains subject-matter extending beyond the parent as filed, it can be amended later so that it no longer extends beyond the earlier content (Art. 76(1)).
At the same time, any amendment to EP-D must also comply with the general added-matter prohibition for the divisional itself (Art. 123(2) EPC), i.e. the amended divisional must not extend beyond EP-D as originally filed.
Exam Tip:
For divisionals, remember the “two-layer added matter” check:
- Art. 76(1) EPC: divisional must not extend beyond parent as filed.
- Art. 123(2) EPC: amendments must not extend beyond divisional as filed.
And if the divisional contains extra subject-matter at filing, you don’t re-date it—you delete/limit it to restore Art. 76(1) compliance.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.