4.3. Correction of errors in a divisional application

In J 17/97 and J 18/97 the representative had filed the divisional application under a different name than the parent application. The Receiving Section had thus refused to treat the application as a divisional application. The representative filed a request for correction of errors pursuant to R. 88 EPC 1973 (now R. 139 EPC) to replace the name of the applicant of the divisional application with the name of the applicant of the parent application. The Legal Board rejected the request as the appellant had not proved that the divisional application had been filed in error under the wrong name. Rule 88 EPC 1973 may not be used to enable a person to give effect to a change of mind or to a subsequent development of plans.

In T 1008/99, the request for correction of errors concerned a divisional application which had been filed with a wrong description unrelated to the earlier (parent) application. The wrongly filed description was therefore to be replaced by the description of the parent application. The board rejected the request and held that, for the purposes of R. 88 EPC 1973, the error had to be apparent from the divisional application itself, and the parent application could not be used to demonstrate that the error was obvious. Even if it was apparent from the filed description, claims and drawings that they did not belong together, it was not immediately clear from the divisional application itself which of these parts was incorrect.