J 0016/91 (Deadline for filing divisional application) of 05.08.1992

1. A European divisional patent application on a pending earlier European patent application may still be validly filed after the approval in accordance with Rule 51(4) EPC of the text in which the European patent for the earlier application is to be granted (departure from Rule 25(1) EPC). However, such a late filing of a divisional application shall not affect the approved text of the European patent for the earlier application nor delay the termination of the grant procedure relating thereto.

2. The filing of a European divisional application is excluded once the EPO and the applicant are bound by the decision pursuant to Article 97(2) EPC to grant the European patent for the earlier application.

3. An applicant may not have his right to file a divisional application re- established pursuant to Article 122 EPC, if the divisional application is filed after the decision to grant a European patent has been taken with respect to the earlier application.

4. The fees paid for a divisional application under Rule 25(2) EPC shall be refunded if the application is not accepted as a divisional application, i.e. if it does not have the benefit of the date of filing and priority, if any, of the earlier application.