2.1.1 Requirement of pendency when filing divisional application is not a time limit

The applicant may file a divisional application relating to any pending earlier European patent application (see R. 36(1) EPC and R. 25(1) EPC 1973 in its version since 2002). This provision sets a condition and not a time limit, which involves a period of fixed length for accomplishing a procedural act. In procedural law, the fact that a conditional act can only be accomplished before a particular set of circumstances foreseen by legal provisions occurs (condition), is conceptually different from a set period of time imposed for doing an act (time limit) (J 24/03, OJ 2004, 544; J 3/04; see also J 10/01; J 18/04, OJ 2006, 560; J 19/10). R. 25(1) EPC 1973 in its version prior to 2002 did also not contain a time limit but identified a point in the grant procedure after which a divisional application could no longer be filed, namely the approval of the text according to R. 51(4) EPC 1973 (J 21/96, J 4/02).

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