Notice from the European Patent Office dated 3 December 2012 on calculation of the time limit under Rule 36(1) EPC

Under Rule 36(1)(a) EPC, the period for "voluntary" division is triggered by the examining division's first communication under Article 94(3) and Rule 71(1) and (2) EPC or under Rule 71(3) EPC in respect of the earliest application for which a communication has been issued (for details, see Guidelines for Examination in the EPO, A-IV, 1.1.1.2). This communication also triggers the period for "mandatory" division under Rule 36(1)(b) EPC if it raises a specific objection of lack of unity for the first time (for details, see Guidelines for Examination in the EPO, A-IV, 1.1.1.3).

Decision J 9/10 of 18 April 2012 (not published in the EPO's Official Journal) cast doubt on the validity of a communication of the examining division issued automatically on EPO Form 2001A[1]. To ensure that this decision does not give rise to legal uncertainty among applicants and the public as to calculation of the time limit under Rule 36(1) EPC, the EPO's receiving section will no longer regard a communication issued on EPO Form 2001A as the communication triggering the relevant period when examining under Article 90(1) EPC in conjunction with Rule 36(1) EPC whether a divisional application has been filed in good time. This means that, in the cases concerned, the period under Rule 36(1)(a) EPC will begin, irrespective of any communication on EPO Form 2001A, on notification of the examining division's first communication under Article 94(3) and Rule 71(1) and (2) EPC or under Rule 71(3) EPC in respect of the earliest application for which a communication has been issued.

Readers should note that the information in the European Patent Register on the communication relevant for calculation of the time limit under Rule 36(1)(a) EPC[2] is now inaccurate in so far as it refers to a communication issued on EPO Form 2001A.


[1] Between 2005 and 2012, communications were issued on EPO Form 2001A in cases in which the applicant had not responded to a negative search opinion drawn up before 1 April 2010 (see Guidelines for Examination in the EPO, C-VI, 3.3 (June 2005) and C-VI, 3.5 (December 2007)).
[2] See OJ EPO 2011, 273

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