T 0873/94 (Amended divisional application) of 10.07.1996

I. A divisional application has to comply with the requirements of both Article 76(1) EPC and Article 123(2) EPC. Article 76(1) EPC governs the filing of a divisional application and therefore whether it is entitled to the filing date of the parent application and has the same benefit of right to priority as the parent application. Article 123(2) EPC governs amendments to the divisional application subsequent to its filing.

II. Where a proposal for amendment of an application involves the addition of a limiting feature to a claim, application of a "novelty test" is not appropriate to determine whether or not the amendment complies with Article 123(2) EPC, because as explained in Decision G 1/93 (OJ EPO 1994, 541), "Whether or not the adding of an undisclosed feature limiting the scope of protection...would be contrary to the purpose of Article 123(2) EPC...depends on the circumstances".