2.2. Amendments to divisional applications

Divisional applications are new applications which are separate and independent from the earlier applications. Amendments to a divisional application are thus allowed under Art. 123(2) EPC to the same extent as amendments of any other non-divisional application (G 1/05 date: 2007-06-28, OJ 2008, 271).

Amendments may be allowed even if the divisional application as filed contains – contrary to Art. 76(1), second sentence, first half sentence, EPC – subject-matter extending beyond the earlier application as filed. Such a divisional application is not to be considered "invalid" (G 1/05 date: 2007-06-28, OJ 2008, 271). It may still be amended during examination proceedings so that it complies with the requirements of Art. 76(1) EPC, provided always, however, that the amendment complies with the other requirements of the EPC (see G 1/05 date: 2007-06-28, OJ 2008, 271). Even if the earlier application is no longer pending, it remains possible to amend a divisional application to bring it in line with the requirements of Art. 76(1) EPC (G 1/05 date: 2007-06-28, OJ 2008, 271).

If a divisional application is amended, it must meet both the requirements of Art. 76(1) EPC and those of Art. 123(2) EPC, so as to preclude the introduction of new subject-matter into the examination proceedings (see, among many others, G 1/05 date: 2007-06-28, OJ 2008, 271; T 284/85; T 441/92; T 873/94, OJ 1997, 456; T 1221/97; T 1008/99; T 561/00; T 402/00; T 423/03).

In T 2327/18 the board rejected the argument made by the respondent (patent proprietor) that, in accordance with G 1/05 date: 2007-06-28 and G 1/06 (OJ 2008, 271 and 307), bringing the application into line with the requirements of Art. 76(1) EPC had to be given priority over compliance with Art. 123(2) EPC. What those decisions had in fact made clear was that Art. 123(2) EPC was equally applicable to amendments to a divisional application as to amendments to any other application. In the case at issue, this meant that deleting a disclaimer which was not in the parent application as originally filed but was in the divisional application as originally filed was not allowable (because it was incompatible with Art. 123(2) EPC; see chapter II.E.1.).