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Guidelines for Examination
Legal remedies for late filing of a divisional application  


Failure to file within the applicable twenty-four-month period 

The periods specified in Rule 36(1)(a) and (b) are excluded from further processing (Rule 135(2)). If a divisional application is not filed within the later-expiring of the periods specified in Rule 36(1)(a) and Rule 36(1)(b) (see A-IV, and, the applicant may request re-establishment of rights in respect of this failure (see E-VII, 2.2). The applicant must (i) request re-establishment (Rule 136(1)) and (ii) complete the omitted act (i.e. file the divisional application - Rule 136(2)) within a period of two months from the removal of the cause of non-compliance with the above-mentioned period (but at the latest within one year of expiry of the unobserved period).

Re-establishment of rights pursuant to Art. 122 is excluded in respect of the requirement for a divisional application to be filed while the earlier application is pending (see J 10/01). This is because, unlike the twenty-four-month periods for voluntary and mandatory division under Rule 36(1)(a) and (b), this requirement of Rule 36(1) does not constitute a time limit for the filing of a divisional application, but rather a point in time by which a divisional must be filed. Consequently, further processing is also not available.


Art. 121
Art. 122