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Guide for applicants, Part 1: How to get a European patent

 
 
VIII.
Divisional applications 
208
The usual reason for filing a European divisional application is that the parent application does not satisfy the requirements as to unity of invention (see point 69) and the applicant is not content with limiting it.
 
209
A divisional application may be filed only for subject-matter which does not extend beyond the content of the parent application as filed. If it complies with this provision and with the formal requirements for according a date of filing (see point 136 et seq.), it is deemed to have the same date of filing and priority date as the parent application.
Art. 76(1), 2nd sentence
Guid. A-IV, 1.2
Guid. C-IX, 1.1
All the designated in the parent application at the time of filing of the divisional application are deemed to be designated in the latter. However, contracting states the designations of which have been withdrawn or are deemed to be withdrawn in respect of the parent application at the time of filing the divisional application cannot be designated in respect of the divisional application. 
210
A divisional application may be filed in respect of any pending earlier European patent application. An application is pending up to (but not including) the date on which the European Patent Bulletin mentions the grant of the European patent or the date on which the application is finally refused, withdrawn or deemed to be withdrawn. After an application has been refused, a divisional application may be validly filed untill the expiry of the appeal period, regardless of whether an appeal has been filed or not. A divisional application must be filed within 24 months from the examining division's first communication under Article 94(3) and Rule 71(1), (2) or Rule 71(3) in respect of the earliest application in sequence for which a communication has been issued. A divisional application may, however, also be filed within 24 months from any communication in which the examining division has raised a specific objection of lack of unity in the earlier (or, in the case of a second or subsequent-generation divisional application, the relevant preceding) application for the first time. Re-establishment in respect of the time limits is available (see point 226).
OJ 2002, 112
OJ 2009, 481
210a
An amendment to the provisions of the EPC dealing with the requirements for the filing of divisional applications has been adopted by the Administrative Council. Following this decision, which enters into force on 1 April 2014 divisional applications can be filed as long as the earlier (parent) application is pending. The 24-month time limits for the filing of divisional applications are thus repealed. The decision will apply to divisional applications filed on or after 1 April 2014. Further information will be published in the Official Journal of the EPO at http://www.epo.org/law-practice/legal-texts/official-journal.htm.
211
Divisional applications must be filed direct with the EPO in Munich, The Hague or Berlin. They may also be filed using the EPO’s Online filing software. They must be filed in the language of the proceedings for the earlier (parent) application. If the parent application was not filed in the language of the proceedings, the divisional application may also be filed in the language of the parent application and a translation must be filed within two months.
212
For the fees payable in respect of a European divisional application, and also for the time limits for payment and the legal consequences of missing them, see points 119-122.
The search fee is refunded in full or in part, depending on the extent to which the search can be based on the search report for the parent (or, in the case of a sequence of applications, any preceding) application.  
If the divisional application is filed more than two years after the date of filing of the parent application, the applicant must pay outstanding renewal fees (see points 213-216) no more than four months after filing the divisional application. If these are not paid in due time, they may still be validly paid within six months of the due date, provided that the additional fee is paid within the time limit (see point 215).
After filing, each divisional application is treated as an independent patent application.