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Case Law of the Boards of Appeal

2.4.2 Requirement of pending earlier application sets no time limit

The wording "to any pending earlier European patent application" in R. 36(1) EPC does not set a period/time limit, but rather sets a condition (J 29/10, referring to J 10/01; J 24/03, OJ 2004, 544; J 18/04, OJ 2006, 560; J 7/05 and G 1/09, OJ 2011, 336). Therefore, the provision on the re-establishment of rights does not apply to the filing of a divisional application because R. 25(1) EPC 1973 does not establish a time limit within the meaning of Art. 122 EPC 1973 (J 24/03, see also J 21/96 and J 10/01). R. 134(2) EPC, concerning the effects on periods of a general dislocation in the delivery of mail, does also not apply (J 29/10).

In J 18/04 (OJ 2006, 560) the board held that the term "pending ... patent application" in R. 25(1) EPC 1973 did not set a time limit, but rather established a substantive requirement which had to be fulfilled at the point when a divisional application was filed. A board had no power to exempt an applicant from compliance with this substantive requirement. No substantive rights were established in a divisional application before the actual filing date of the divisional application. Substantive rights which were lost in the parent application could not be re-established in the divisional application by applying Art. 122 EPC 1973.