Filing of divisional application 

In J 2/08 (OJ 2010, 100), the appellant/applicant contended that the EPO had violated the principle of good faith on several occasions (omission to inform in respect of filing a divisional application; publication of the divisional application; late noting of loss of right). As a result, in the appellant’s view, by taking no action (instead of proactively warning the appellant) the EPO induced the appellant into believing that everything was in good order with the divisional application, until it became too late to file an appeal against the decision refusing the parent application. In the Board’s view it was exclusively the responsibility of the applicant and his representative to decide on the factually and legally most appropriate filing actions to be taken. Furthermore no legitimate expectations concerning the validity of an application may be based on the fact that an application has been published. Finally, the loss of rights communication under R. 69 EPC 1973, which is not just a warning but a procedural act, had to be sent after the end of the appeal period.

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