New Rule 36 EPC regarding the filing of divisional applications


As of 01/04/2010, divisional applications on the applicant's own initiative (so-called voluntary divisional applications) will need to be filed within a period of two years from the first communication sent by the examining division of the EPO in respect of the parent (i.e. the previous) or an even earlier (in case of a "chain" of applications) patent application.

Divisional applications filed as a reaction to a non-unity objection (so-called mandatory divisional applications) will also have to be filed within 24 months from the communication in which the relevant objection is raised by the examining division for the first time. The current legal framework only requires that the parent application is pending at the time the divisional application is filed. The change will apply to any divisional applications filed on or after 01/04/2010. It is therefore already required to review pending european patent cases to see is any divisional application needs to be filed before that date.Transitional provisions The amended version of Rule 36 EPC will apply only to European divisional applications filed after its entry into force, i.e. on or after 01/04/2010. If the time limits provided for in amended Rule 36(1) EPC have expired before 01/04/2010, a divisional application may still be filed within six months of that date, i.e. until 01/10/2010. If the relevant time limits are still running on 01/04/2010, they will continue to do so for not less than six months. In other words, for any applications pending on 01/04/2010 and on which a first communication from the examining division has been issued or a non-unity objection has been (subsequently) raised, so that the time limits are still running on that date, the time limit will not expire before 01/10/2010. See the decision regarding amended Rule 36 EPC, and the Notice from the EPO dated 20/08/2009