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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.

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