Legal framework
A European divisional application may be filed only in respect of subject-matter which does not extend beyond the content of the earlier application as filed. Insofar as that requirement is complied with, the divisional application is deemed to have been filed on the filing date of the earlier application and enjoys any right of priority: Article 76(1) EPC.
A divisional application may be filed while the earlier European patent application is pending: Rule 36(1) EPC. Here, EP-P was still pending on 10 June 2025, so the timing of filing EP-D is not the problem.
If a divisional application as filed contains subject-matter extending beyond the parent application as filed, this does not make the application automatically invalid. It may be amended later so that it no longer extends beyond the earlier application. This was confirmed in G 1/05. However, the amendment must also comply with Article 123(2) EPC, meaning that the amended subject-matter must not extend beyond the divisional application as filed.
The Guidelines state the same rule in C-IX, 1.4: a divisional containing added matter may be amended to remove the additional subject-matter, but if the applicant does not remedy the defect, the divisional must be refused under Article 97(2) EPC for non-compliance with Article 76(1) EPC. The divisional cannot be converted into an independent application taking its own filing date.
Statement a)
False.
EP-D does not receive two different filing dates: 14 February 2023 for the subject-matter common with EP-P and 10 June 2025 for the remaining subject-matter.
Under Article 76(1) EPC, the deemed filing date of the parent applies only insofar as the divisional complies with the requirement that it does not extend beyond the content of the parent application as filed. Added subject-matter in a divisional is not given the actual filing date of the divisional as a separate valid date.
Statement b)
False.
EP-D has an actual filing date of 10 June 2025 in the practical sense that this is the date on which the divisional was filed. However, it is not “deemed” to have that date as its filing date for the added subject-matter.
A divisional application that contains added subject-matter cannot be converted into an independent European application taking its own date of filing. This is expressly stated in Guidelines C-IX, 1.4.
If the Article 76(1) EPC defect is not corrected, the application is refused under Article 97(2) EPC. It is not treated as an ordinary European application filed on 10 June 2025.
Statement c)
False.
It is not mandatory for a divisional application to have the same claims as the parent application.
The Guidelines state that the claims of a divisional application need not be limited to subject-matter already claimed in the parent application’s claims. What matters is not whether the subject-matter was claimed in the parent, but whether it was directly and unambiguously disclosed in the parent application as filed. See Guidelines C-IX, 1.4 and G 1/05.
Statement d)
True.
The applicant may amend EP-D during examination to remove the subject-matter that was not originally disclosed in EP-P.
This is allowed under G 1/05, which confirms that a divisional application containing added matter relative to the earlier application may be amended later so that its subject-matter no longer extends beyond the content of the earlier application as filed.
However, the amendment must also satisfy Article 123(2) EPC. This means that the amended EP-D must not extend beyond the content of EP-D as originally filed. The Guidelines expressly state that amendments made to a divisional after filing must comply with Article 123(2) EPC. See Guidelines C-IX, 1.4.
Exam tip
For divisional applications, do not create “partial filing dates”. Added matter in a divisional is not rescued by giving it the divisional’s actual filing date. The applicant must remove the matter that was not disclosed in the parent. The final version must pass both tests: no extension beyond the parent under Article 76(1) EPC, and no extension beyond the divisional as filed under Article 123(2) EPC.
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.