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Guidelines for Examination

 
 
1.2.1
Date of filing 

A European divisional application may be filed in respect of subject-matter which does not extend beyond the content of the parent application as filed. Provided this requirement is met, the divisional application is deemed to have been filed on the date of filing of the parent application and enjoys that application's priority (see A-IV, 1.2.2).

Art. 76(1), 2nd sentence

A divisional application filed in due form, i.e. meeting the requirements of Art. 80 and Rule 40(1) (see A-II, 4.1 et seq.), is accorded the same date of filing as the parent application. The question of whether it is confined to subject-matter contained in the parent application is not decided until the examination procedure (see C-IX, 1.4 et seq.).

Since Rule 40(1) does not require that a European application contain any claims on its date of filing, the same applies to a European divisional application. The applicant can file the claims after the filing of the divisional application according to the procedures detailed in A-III, 15. This may be done after the parent application is no longer pending and after expiry of the periods for voluntary and mandatory division, provided that the requirements of Rule 40(1) were satisfied with regard to the divisional (i) while the parent application was still pending and (ii) before expiry of the relevant period (see A-IV, 1.1.1, 1.1.1.1, 1.1.1.2 and 1.1.1.3).

References

Art. 76(1), 2nd sentence

Art. 80
Rule 40(1)