A divisional application may be filed on the basis of a pending earlier (parent) application before the expiry of a time limit of twenty-four months from the Examining Division's first communication in respect of the earliest application for which a communication has been issued (see, however, A-IV, 18.104.22.168). The only events from which the period for voluntary division is calculated are (see the Decision of the Administrative Council dated 26 October 2010, OJ EPO 2010, 568; see also the Notice from the EPO dated 29 June 2010, OJ EPO 2010, 406):
The date of despatch of this communication will be entered in the European Patent Register (OJ EPO 2011, 273). Note however, that the information regarding this is inaccurate in so far as it refers to a communication issued on EPO Form 2001A (Notice from the EPO dated 3 December 2012 on calculation of the time limit under Rule 36(1), OJ EPO 2013, 16). This means that, in the cases concerned, the period under Rule 36(1)(a) will begin, irrespective of any communication on EPO Form 2001A, on notification of the examining division's first communication under Art. 94(3) and Rule 71(1) and Rule 71(2) or under Rule 71(3) in respect of the earliest application for which a communication has been issued. This information may be retrieved for example via online file inspection.
Notification of the search opinion (see B-XI, 1.1) does not cause this twenty-four-month period to start because the Examining Division is not yet responsible for the application (see C-II, 1). However, in cases where the applicant has waived his right to receive the communication according to Rule 70(2) (see C-VI, 3), no search opinion is issued, but rather a communication according to Art. 94(3) and Rule 71(1) and Rule 71(2) (see B-XI, 7), and notification of this communication does cause the twenty-four-month period to start. When calculating the twenty-four-month period for voluntary division, the ten-day rule applies in calculating the date of notification of the above communications (Rule 126(2) – see E-I, 2.3 and E-VII, 1.4).
The earlier (parent) application on which the divisional is to be based has to be pending at the time the divisional application is filed. If it lapses or is withdrawn before the first communication is sent in respect thereof in examination proceedings, a divisional application may no longer be filed (see A-IV, 22.214.171.124). The same applies if the earlier (parent) application ceases to be pending after notification of the first communication referred to above but before expiry of the twenty-four-month period.
Where a first communication according to Art. 94(3) and Rule 71(1) and Rule 71(2) was based on the wrong application documents, notification of this communication does not start the period for voluntary division according to Rule 36(1)(a) (for more details see C-IX, 1.3).