The EPO Enlarged Board of Appeal has finally issued its decision on the various questions (summarised here and here) referred to it from different Technical Boards of Appeal (T 1040/04, T 1409/05 & T 39/03) regarding divisional applications. The referred questions related to the validity of applications filed under Article 76 EPC, including whether amendments could be made after filing to overcome subsequent objections regarding added subject matter. The Board ordered:
"So far as Article 76(1) EPC is concerned, a divisional application which at its actual date of filing contains subject-matter extending beyond the content of the earlier application as filed can be amended later in order that its subject-matter no longer so extends, even at a time when the earlier application is no longer pending. Furthermore, the same limitations apply to these amendments as to amendments to any other (non-divisional) applications."The full decision, which of course goes into a lot more detail than this, is available for now via the epoline register until it makes its official appearance online.
The IPKat (with his patent attorney hat on) is very much relieved that the Enlarged Board has reached the obvious common sense solution. Any other outcome would have not only been very illogical but would also have caused a great deal of harm to the whole patent system in Europe. Merpel can only wonder why we had to change section 76(1) to address the very same issue regarding UK 'divisional' applications all those years ago.