Detailed Answer with Legal References
Statement a) - False
EP-D cannot be validly filed before the first communication under Article 94(3) EPC was issued in respect of EP-P; therefore EP-D was not validly filed.
Under Rule 36(1) EPC, a divisional application may be filed at any time while the earlier (parent) application is pending. The issuance of a communication under Article 94(3) EPC is not a precondition for filing a divisional. Since EP-P was still pending on 16 June 2025, EP-D was validly filed.
Statement b) - True
At present, EP-D is deemed to have 16 June 2025 as its date of filing.
Despite the presence of subject-matter extending beyond the content of the earlier application (EP-P), EP-D retains its actual filing date of 16 June 2025. However, if this added matter is not removed, EP-D will not be entitled to the filing date of the parent (EP-P). It does not lose its own filing date, but may lose entitlement to the earlier date (see G 1/05 and Guidelines C-IX, 1.4). Therefore, the statement is correct.
Statement c) - True
The renewal fee for EP-D may be validly paid on 14 October 2025 without additional fee.
Under Rule 51(3) EPC, the renewal fee for the third year for EP-D (which mirrors that of EP-P) becomes due by the last day of the month in which the anniversary of the parent’s filing occurs (i.e., 31 August 2025) and can be paid within 4 months from the actual filing date (16 June 2025). This makes 16 October 2025 the deadline without surcharge. Hence, payment on 14 October 2025 is valid and timely.
Statement d) - Flase
In the present case EP-P will be regarded as prior art under Article 54(2) EPC against EP-D.
A European parent application cannot be considered prior art under Article 54(2) EPC against its own divisional application, as the filing date is shared (or at least derived) unless entitlement is broken. Even if EP-D contains added subject-matter, it is not considered independent for Art. 54(2) purposes unless it becomes a separate application. Thus, EP-P cannot serve as prior art against EP-D.
References: Guidelines C-IX, 1.4; G 1/05, Reasons 11.1.
Exam Tip
When assessing divisional applications, always check:
Whether the parent is still pending at the time of filing (Rule 36 EPC).
- Whether the divisional introduces added subject-matter; if so, it may not be entitled to the parent’s filing date (Art. 76(1) EPC).
- Payment deadlines for renewal fees — especially in cases of divisionals — which may differ from the filing date of the parent.
- Prior art status of the parent — it cannot be prior art under Art. 54(2) against its own divisional, but added subject-matter may affect entitlement.
Legal Disclaimer
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