Article 76 EPC: European divisional applications

Text of Article 76 EPC

In plain English

A divisional application lets you carve a separate application out of a pending European application. It keeps the parent's filing date and any priority, provided its content stays within the parent as filed. Article 76 sets that substantive rule; Rule 36 sets the procedure (when it can be filed, fees and language).

It must be filed directly at the EPO, in Munich, The Hague or Berlin, not at a national office. Every contracting state designated in the parent when the divisional is filed is deemed designated in the divisional (Article 76(2)).

The content test mirrors Article 123(2). Anything in the divisional must be directly and unambiguously derivable from the parent as filed. For chains, G 1/06 requires that the content be derivable from each preceding application in the sequence as filed, so an amendment made in a first-generation divisional cannot be carried into a second-generation one.

A divisional that adds matter at filing is not invalid for that reason. G 1/05 held it can be amended later to remove the excess, even after the parent is no longer pending, with the same limits as any other amendment.

A divisional cannot be used to obtain a second patent for the same subject matter. G 4/19 confirmed that an application can be refused under Articles 97(2) and 125 if it claims the same subject matter as a European patent already granted to the same applicant, whether it is a divisional, a parent or an application claiming the same priority.

Divisionals are used for unity objections (G 2/92), to keep a family alive while an appeal runs, or to pursue broader or different claims after grant of the parent. Each later generation costs more: from 1 April 2026 the extra filing fee is €235 for a second-generation divisional, rising to €955 from the fifth generation (Rules relating to Fees, item 1b).

Deadlines and fees

Key decisions

• G 1/06 (Sequences of divisionals/SEIKO) : In a chain of divisionals, everything disclosed in a divisional must be directly and unambiguously derivable from each preceding application as filed.
• G 1/05 (Divisional/ASTROPOWER) : A divisional that extends beyond the parent at filing can be amended later to comply with Article 76(1), even when the parent is no longer pending.
• G 4/19 (Double patenting) : An application can be refused if it claims the same subject matter as a European patent already granted to the same applicant, including for divisionals and applications sharing a priority.

Common objections

Added matter over the parent (Article 76(1))

Often caused by copying amended claims from the parent, or by combining features from different embodiments. Check every claim against the parent as filed, and against each earlier generation for a chain.

Double patenting

If the divisional claims the same subject matter as the granted parent, the examiner will object under Article 125. Make sure the claims differ in substance, not only in wording.

Drafting and prosecution tips

• File the divisional with the full parent description and drawings as filed, not the amended version, to keep the widest base for later claims.
• Diarise the parent's expected mention of grant as soon as you approve the Rule 71(3) text; that is the last chance to divide.
• Prefer dividing from the root application rather than building long chains: each generation costs more and narrows the available content.