Divisional applications under the European Patent Convention

During the grant procedure before the European Patent Office (EPO), divisional applications can be filed under Article 76 EPC. A divisional application, sometimes called European divisional application, is a new patent application which is separate and independent from the parent application, unless specific provisions in the European Patent Convention (EPC) require something different.

The possibility to file a divisional application is provided in many patent systems and is guaranteed by Article 4.G. of the Paris Convention for the Protection of Industrial Property of 1883, to which more than 170 countries are Contracting Parties.

Some basic characteristics of a divisional application are as follows:

A divisional application under the EPC is a new patent application which is separate and independent from the parent application, unless specific provisions in the European Patent Convention (EPC) require something different.

A divisional application may, however, be filed "only in respect of subject-matter which does not extend beyond the content of the earlier application as filed." The practice relating to the filing of divisional applications under the EPC was clarified by the Enlarged Board of Appeal of the EPO in June 2007. The Board held that a divisional application which on filing contained subject-matter extending beyond the content of the earlier application as filed could be amended later to remove the deficiency, even at a time when the earlier application is no longer pending.

The conditions for filing divisional applications regarding the time limit to be met have however been modified several times since the entry into force of the European Patent Convention in the 1970s, and changed again on April 1, 2010. What has not been changed however is that a divisional application can by no means be filed after grant of a European patent, i.e. based on a European patent. A divisional application can only be filed based on a pending European patent application, provided that the provisions of Rule 36(1) EPC are met.

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Wikipedia