Quick Navigation

 

Guidelines for Examination

 
 

1.2.2 Priority claim of a divisional application

A priority claimed in the parent application also applies to the divisional application, provided that the parent application's priority has not been lost or withdrawn by the date the divisional application is filed; it is not necessary to claim it formally a second time. The priority claim can be withdrawn in respect of the divisional application (F‑VI, 3.5, and E‑VII, 6.2 and 6.3). However, this withdrawal will have no effect on the priority claim of the parent application. Similarly, the subsequent withdrawal of the priority claim of the parent application has no effect on the priority claim of the divisional application.

The applicant may, if he so desires, claim fewer priorities in respect of the divisional application (where the parent application claims more than one priority - Art. 88(2)). To do so, he must file a clear and unambiguous withdrawal of the priority or priorities in question in respect of the divisional application (see the Notice from the EPO dated 12 November 2004, point 4, OJ EPO 2004, 591). In the absence of such a withdrawal, all priorities which have not lapsed in respect of the parent application when the divisional is filed also remain valid with respect to the divisional application. Furthermore, in the absence of such a withdrawal, all such priority claims remain valid for the divisional, even if the applicant provides an incorrect or incomplete priority claim when filing the divisional application.

If a copy and any translation of the priority application have been filed in respect of the parent application before the divisional application is filed, it is not necessary to file the priority documents again in respect of the divisional application. The EPO makes a copy of these documents and places them in the file of the divisional application (see Decision of the President of the EPO dated 12 July 2007, Special edition No. 3, OJ EPO 2007, B.2).

If, when the divisional application is filed, the priority document has not been filed in respect of the parent application, it must be filed in respect of the divisional application and, if the priority of the parent application's remaining subject-matter is to be retained, in respect of the parent application also. The applicant can also inform the EPO, within the time limit set for filing priority documents in the divisional application proceedings, that he has in the meantime submitted these documents in respect of the parent application. If the subject-matter of the divisional application relates only to some of the priorities claimed in the parent application, priority documents in respect of the divisional application need be filed for those priorities only.

This applies also as regards indicating the file number of the priority application. For the time limits for indicating the file number and for filing the priority documents, see A‑III, 6.5, 6.5.3 and 6.7 et seq.