3.5.4 Pendency in case of refusal of earlier application against which no appeal was filed

In G 1/09 (OJ 2011, 336) the Enlarged Board of Appeal decided that, in the case where no appeal is filed, a European patent application which has been refused by a decision of the examining division is thereafter pending within the meaning of R. 25 EPC 1973 (R. 36(1) EPC) until the expiry of the time limit for filing a notice of appeal. It stated that a "pending (earlier) European patent application" in the specific context of R. 25 EPC 1973 (R. 36(1) EPC) was a patent application in a status in which substantive rights deriving therefrom under the EPC were (still) in existence. A patent application which had been refused by the examining division was thereafter still pending within the meaning of R. 25 EPC 1973 (R. 36(1) EPC) until the expiry of the period for filing an appeal and, on the day after, was no longer pending if no appeal was filed.