Any pending European patent application may be divided. In order to divide a European application, the applicant files one or more European divisional applications. It is irrelevant what kind of application the European patent application which is divided, i.e. the parent application, is. The parent application could thus itself be an earlier divisional application. In the case of the parent application being a Euro-PCT application, a divisional application can only be filed once the Euro-PCT application is pending before the EPO acting as a designated or elected Office, i.e. the Euro-PCT application must have entered the European phase.

If an application is deemed to be withdrawn due to the non-observance of a time limit (e.g. following failure to file the designation of the inventor (Art. 91(5)), to pay the fees for grant and printing or the claims fees, or to file the translation of the claims (Rule 51(8)) in due time, the application is no longer pending when the non-observed time limit has expired, unless the loss of rights, as communicated pursuant to Rule 69(1), is remedied. This may be effected either by means of an allowable request for further processing or re-establishment of rights (see E-VIII, 2) or, if the applicant considers that the finding of the EPO was inaccurate, by applying for a decision pursuant to Rule 69(2), whereupon either the competent EPO department shares his opinion and rectifies its decision or that department gives an unfavourable decision which is subsequently overturned on appeal.

Once an application has been refused, a divisional application can no longer be validly filed, unless the applicant files a notice of appeal, in which case the decision to refuse cannot take effect until the appeal proceedings are over. As the provisions relating to the filing of divisional applications also apply in appeal proceedings (Rule 66(1)), a divisional application may be filed while such appeal proceedings are under way.