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IP Flash

04.11.2010

Steven M. Zeman, Ph.D., Dr. Franz-Josef Zimmer, European Patent Attorneys at Grünecker Patent- und Rechtsanwälte, Munich

On April 1, 2010 new rules for divisional applications came into force in the EPO. In the past one could file a “divisional” at any time during an application’s pendency. The new rules set limits on when and why divisionals may be filed. Applicants of older applications for which the new deadlines had already expired were given a final grace period to file all “voluntary” divisionals (more on these below…). This grace period ended on October 1, 2010 and triggered a flood of new divisionals in the EPO. With this flood just past, when and why may European divisionals now be filed?
As in the past, in order to be admissible, the divisional’s parent must still be pending when the divisional is filed. When an application is granted, it remains pending up to (but not in­cluding) publication of the grant. When an application is refused, it remains pending throughout the following

appeal period, even if no appeal is filed.
The old law knew only one type of divisional, but the new rules distinguish two types : voluntary and mandatory divisionals. “Voluntary” divisionals may be filed for any reason; “mandatory“ divisionals may only be filed in response to a unity objection. All voluntary divisionals must be filed within 24 months of the first communication of the EPO Examining Division (ED) in any earlier family member. Mandatory divisionals must be filed within 24 months of the ED’s communication in which it first raises a particular unity objection. Different unity objections trigger separate 24-month time limits when the objections are raised at different times.
In most cases, the “Communication of the Examining Division“ mentioned in the new rules will normally be an examination report under Art. 94(3) EPC. EPO search reports will not trigger time limits for divisionals (search reports are not prepared by the ED). Nor will an action issued by the EPO acting as a search or examination authority for an international (PCT) application.
To prevent loss of subject matter, applicants should note the 24 month time period from the first ED communication (time limit for filing voluntary divisionals). One should also carefully check each communication from the ED for any new unity objections, noting a separate 24 month time limit for each objection and requesting written clarification if necessary. The EPO’s “10-day-rule” for fictional notification of documents applies for the calculation of the 24 month time limits. Keeping careful track of these dates should help avoid loss of subject matter as a result of the EPO’s new legislation.

Politics / Law

06.03.2012

London – The European Medicines Agency (EMA) calls it “the biggest change to the legal framework since the establishment of the Agency in 1995.” This year, the EU drug regulators are preparing new so-called pharmacovigilance...

Clinical Trial

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Norway’s Algeta ASA (Oslo) has updated its Phase III survival analysis of Alpharadin in patients with castration-resistant prostate cancer and bone metastases. The analysis showed an increase of 3.6 months in median overall...

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Genticel S.A. (Toulouse) has completed enrolment in its Phase Ib study of a lyophilised version of the world’s very first therapeutic vaccine ProCervix, which inhibits infection with the cancer-causing Human Papilloma Virus. The...

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The share value of French specialist for cardiometabolic diseases Genfit S.A. (Loos/Lille) took a jump after the company announced its candidate drug GFT505 had met all efficacy endpoints in a pilot Phase II study involving 22...

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The US Food and Drug Administration (FDA) has granted a Biologics License Application (BLA) to the HER2 dimerisation inhibitor pertuzumab developed by Roche (Basel) for previously untreated HER2­-positive metastatic breast...

Politics / Law

06.03.2012

A For years, the world’s major patent offices – including the EPO, USPTO and JPO – have been collaborating in the Patent Prosecution Highway (PPH) programme. Under the PPH, an applicant whose claims have been allowed in one...

BioFunding

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Berlin/Dublin – Two EU initiatives are seeking to better predict response to cancer treatments. Researchers from the a6m RESPONSIFY Project will develop biomarker-based breast cancer prognosis tests that could be used to predict...

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Bremen/Brussels – European researchers kicked-off the MicroB3 (Bio­diversity, Bioinformatics, Biotechnology) project in February. Thanks to a a9m EU fund, the 32 groups involved will create a unique bioinformatic resource that...

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A Brussels – The European Commission is boosting its investments and policy activities to foster sustainability. “Europe needs to make the transition to a post-petroleum economy,” said Máire Geoghegan-Quinn in Brussels. In...

Politics / Law

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Brussels – In February, I heard of a slightly mad and very worrying trend in decisions handed down by the Court of Justice of the European Union (CJEU) with regard to IP issues handed up from the national level for clarification....

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