II. Patent application and amendments

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Case Law of the Boards of Appeal of the European Patent Office
II. Patent application and amendments
F. Divisional applications

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F. Divisional applications

Overview

F. Divisional applications

2.Subject-matter of a divisional application: 2.1.Subject-matter extending beyond content of the earlier application
2.1.1Principles
2.1.2Directly and unambiguously derivable from content of earlier application as filed
2.1.3Sequence of divisionals – derivable from each of the preceding applications as filed
2.1.4Language issues
2.2.Amendments to divisional applications
2.3.Subject-matter of a patent granted on a divisional application
2.3.1Findings of G 1/05 and G 1/06 also applicable to granted patents
2.3.2Two distinct grounds for opposition under Article 100(c) EPC
2.3.3Ground raised against amended claims in opposition proceedings
2.4.Link between subject-matter of earlier application and divisional application
2.4.1No abandonment of subject-matter in earlier application if divisional is filed
2.4.2No effect on content of divisional application if earlier application was refused
2.4.3Final decision on subject-matter in the parent application or a sibling application – res judicata
a)Decisions affirming "cross-procedural" res judicata effect
b)Decisions leaving open the question of "cross-procedural" res judicata effect
c)Decisions doubting "cross-procedural" res judicata effect
2.4.4Re-filing of same subject-matter
3.Filing a divisional application: 3.1.Right to file a divisional application
3.1.1Applicant of earlier application entitled to file divisional application
3.1.2Filing of divisional application during stay of proceedings
3.1.3No obligation to postpone a decision to allow the filing of a divisional application
3.2.Filing date attributed to divisional application
3.3.Language for filing divisional application
3.4.Divisional application to be filed with EPO
3.5.Requirement of pending earlier application
3.5.1Requirement of pending earlier application sets no time limit
3.5.2Pendency of a Euro-PCT application before the EPO acting as patent-granting authority according to the EPC
3.5.3Pendency in case of grant of earlier application against which no appeal was filed
3.5.4Pendency in case of grant of earlier application against which an appeal was filed
3.5.5Pendency in case of refusal of earlier application against which no appeal was filed
3.5.6Pendency in case of refusal of earlier application against which an appeal was filed
3.5.7Pendency in case of deemed withdrawal of earlier application and request for re-establishment
3.5.8Pendency in case of deemed withdrawal of earlier application and no reaction to loss of rights communication under Rule 112(1) EPC
3.5.9Pendency in case of withdrawal of earlier application
3.6.Time limits under Rule 36(1)(a) and (b) EPC in the version in force between 1 April 2010 and 31 March 2014
4.Procedural questions: 4.1.Procedural independence of divisional application
4.1.1Principles
4.1.2No preclusive effect of a decision with respect to identical requests in the other procedure
4.1.3Filing a divisional application not a response to a communication under Article 94(3) EPC
4.1.4Intention to file divisional application immaterial to admissibility of appeal against grant of the parent
4.1.5Submissions made in the parent proceedings
4.2.Designation of contracting states in a divisional application
4.2.1Deemed designation of all states designated in earlier application at the date of filing of divisional
4.2.2Designated state forfeited in the parent application at the time of filing the divisional
4.2.3Full effect of designation up to the due date for payment
4.2.4Payment of fee for each designated State – case law concerning situation prior to 1 April 2009
4.3.Correction of errors in a divisional application
4.4.Search fee for a divisional application

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