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Case Law of the Boards of Appeal

 
 
1.2.1 Amendments to a divisional application allowed to the same extent as amendments of any other non-divisional application

Divisional applications are new applications which are separate and independent from the earlier applications. Amendments to a divisional application are thus allowed under Art. 123(2) EPC to the same extent as amendments of any other non-divisional application (G 1/05, OJ 2008, 271, points 9.1-9.2 of the Reasons).

Amendments may be allowed even if the divisional application as filed contains – contrary to Art. 76(1), second sentence, first half sentence, EPC – subject-matter extending beyond the earlier application as filed. Such a divisional application is not to be considered "invalid" (G 1/05, OJ 2008, 271, point 2.9 of the Reasons). It may still be amended during examination proceedings so that it complies with the requirements of Art. 76(1) EPC, provided always, however, that the amendment complies with the other requirements of the EPC (see G 1/05, OJ 2008, 271, point 7 of the Reasons). Even if the earlier application is no longer pending, it remains possible to amend a divisional application to bring it in line with the requirements of Art. 76(1) EPC (G 1/05, OJ 2008, 271, points 8.1-8.2 of the Reasons).

If a divisional application is amended, it must meet both the requirements of Art. 76(1) EPC and those of Art. 123(2) EPC, so as to preclude the introduction of new subject-matter into the examination proceedings (see, among many others, T 284/85, T 441/92, T 873/94, OJ 1997, 456; T 1221/97, T 1008/99, T 561/00, T 402/00, T 423/03).