Article 76

1. A European divisional application shall be filed directly with the European Patent Office in accordance with the Implementing Regulations. It may be filed only in respect of subject-matter which does not extend beyond the content of the earlier application as filed; in so far as this requirement is complied with, the divisional application shall be deemed to have been filed on the date of filing of the earlier application and shall enjoy any right of priority.

2. All the Contracting States designated in the earlier application at the time of filing of a European divisional application shall be deemed to be designated in the divisional application.

UPC Case law 

Court of First Instance

IPPT20251020, UPC CFI, CD Paris, Meril v Edwards Lifesciences
Invalidity because of added subject matter in claim 4, 7 and 8 (Article 76(1) EPC, Article 138(1)(c) EPC) the invalidity ground based upon Art. 76 (1) ‘EPC’ is considered well founded and the intermediate generalization concerning the omission of the claimed valve being a “heart” one unallowable. Accordingly, the patent cannot be maintained in the form as granted. 

IPPT20250730, UPC CFI, LD Düsseldorf, Headwater Research v Samsung Electronics
Added matter (Article 138(1)(c) EPC, Article 76 EPC, Article 123(2) EPC). The criterion to determine whether a divisional application extends beyond the content of the parent application is the same as the one applied to determine whether an application contains added subject-matter with respect to the application as originally filed. When the Court has to decide on the merits, as it is case in the present instance, the standard to be used for assessing the presence of added subject-matter is the criterion of “beyond (reasonable) doubt”. Features 1.5.1 and 1.5.3.1 (resp. feature 1.5.3.2) are not disclosed in the earlier application as originally filed because, according to this application, the processor determines whether a network service usage activity is running in the background (resp. foreground), instead of whether a (first) device application is running in the background (resp. foreground), as claimed. The Court also finds that there is no API blocking access (features 1.5.2, 1.5.3) disclosed based on the determination that the application is running in the background. 

IPPT20240719, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences
Main Request invalid because of undue extension of divisional application – added matter (Article 76 EPC, Article 123(2) EPC). Intermediate generalisation as a consequence of the isolation of a non-optional feature.