3.1. Right to file a divisional application
3.1.4 No obligation to postpone a decision to allow the filing of a divisional application
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In T 1184/03 the appellant requested during the oral proceedings before the board that the delivery of the decision be postponed with a view to filing a divisional application. Since the case was ready to be decided at the oral proceedings, the board held that postponing the decision of the board to allow the filing of a divisional application would run counter to the public interest in having the matter decided as expeditiously as possible, because the matter ready to be finally decided by this board would be pending again. See also T 592/15.
In T 591/05 the applicant had declared during the examination proceedings that he reserved the right to file a divisional application. The board found that this declaration created no obligation for the examining division to check the status of any possible divisional application or to postpone the grant of the patent. It was incumbent on the applicant, and not on the EPO, to undertake the appropriate measures to ensure that any possible divisional application was filed in due time before the grant procedure was closed.
- T 592/15
A request to postpone the taking of the decision on the allowability of an appeal at least until a divisional application is filed would oblige a board to examine questions outside of the framework of the appeal concerned and is therefore to be refused (see Reasons 4 to 4.5).
- Case law 2019
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In T 592/15 the board refused the applicant's request that the "application be maintained pending until [a] divisional application has been filed". The board understood the appellant's submissions to be a request that the board postpone the taking of the decision on the allowability of the appeal at hand until at least the appellant had filed a divisional application. The board observed that, according to the jurisprudence of the boards of appeal, requests and actions obliging a board to examine questions outside of the framework of the appeal concerned were not admissible and could not be dealt with in substance within such appeal proceedings (T 502/02). In the case at hand the request to postpone the taking of the decision on the allowability of the appeal until a divisional application had been filed would have required the board to investigate whether the appellant had indeed filed a divisional application and, as the case may be, to even postpone the oral proceedings. The board emphasised that the question of whether a divisional application has been filed was a question outside of the framework of the appeal proceedings at hand, in particular because the procedure concerning a divisional application and the procedure concerning the parent application are in principle independent (G 4/98, OJ EPO 2001, 131). As a further argument against granting the request, the board observed that the appellant would also gain complete control over the duration of the appeal proceedings, including the possibility of having them pending ad infinitum, if no divisional application was filed at all.