J 0018/04 (Concept of time limit/MICROSOFT) vom 04.05.2005

I. Rule 25(1) EPC imposes a substantive requirement which must be fulfilled when a divisional application is filed. A Board has no power to excuse an applicant from complying with this substantive requirement

II. Time limits in the EPC have two conceptual elements: 1, a period of time determined in years, months or days, and 2, a relevant date, which serves as the starting date of the time limit, and from which the period of time is counted. Time restrictions imposed on applicants by the EPC, but not having these conceptual elements can not be regarded as time limits for the purposes of Article 122 EPC.

III. No substantive rights are established in a divisional application before the actual filing date of the divisional application. Substantive rights which were lost in the parent application can not be re- established in the divisional application by applying Article 122 EPC.