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

According to the established case law (see J 19/10) of the boards of appeal, R. 36(1) EPC (and R. 25(1) EPC 1973 in its version since 2002) sets a condition, not a time limit, for filing a divisional application to any pending earlier European application, namely that the earlier European patent application is pending. 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; G 1/09, OJ 2011, 336; J 19/10; J 10/12). R. 25(1) EPC 1973 in its version prior to 2002 also did 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).