T 0555/00 du 11.03.2003

Divisional application of a divisional application (formally allowable)
Extension beyond the content of the parent application (yes)

1. A European divisional application of a pending European patent application, i.e. the parent application, which itself was filed as a European divisional application of a then pending European patent application, i.e. the grandparent application, does not as such contravene the requirements of Article 76 EPC and Rule 25 EPC (cf. point 1.2 of the Reasons).
2. Since both the European divisional application on which the patent in suit is based and the parent application are deemed to have been filed on the date of filing of the grandparent application under Article 76(1) EPC, not only the patent in suit, but also the parent application must comply with Article 76(1) EPC. Hence, subject-matter contained in the patent in suit must be disclosed in both the parent application as filed and the grandparent application as filed (cf. point 1.5 of the Reasons). Otherwise, the patent in suit has to be revoked (cf. point 1.6 of the Reasons).
3. The EPC does not provide for the possibility of determining any effective filing date the patent in suit may profit from, and of assessing novelty and inventive step in respect of prior art published before that date, if it contains subject-matter which extends beyond the content of the parent application as filed and/or the grandparent application as filed (cf. point 1.6 of the Reasons; deviating findings: cf. decision T 904/97, point 4 of the Reasons).