Can a divisional application include new matter?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

No, a divisional application cannot include new matter that was not disclosed in the parent application. The MPEP 201.06 clearly states:

‘A divisional application is a later application for an independent or distinct invention, carved out of a prior application and disclosing and claiming only subject matter disclosed in the prior application.’

This means:

• The divisional application must be limited to the subject matter disclosed in the parent application
• No new matter can be added to the divisional application
• The claims in the divisional must be supported by the disclosure of the parent application

If an applicant wishes to add new matter, they should consider filing a continuation-in-part (CIP) application instead of a divisional. For more information on new matter, refer to MPEP 2163.