3.5.1 Requirement of pending earlier application sets no time limit

The wording "to any pending earlier European patent application" in R. 36(1) EPC does not set a period/time limit, but rather sets a condition (J 29/10, referring to J 10/01; J 24/03, OJ 2004, 544; J 18/04, OJ 2006, 560; J 7/05, G 1/09, OJ 2011, 336, J 10/12). Therefore, the provision on the re-establishment of rights does not apply to the filing of a divisional application (J 24/03, see also J 21/96 and J 10/01). Rule 134(2) EPC, concerning the effects on periods of a general dislocation in the delivery of mail, does also not apply (J 29/10).

In J 18/04 (OJ 2006, 560) the board explained that the term "pending ... patent application" in R. 25(1) EPC 1973 established a substantive requirement which had to be fulfilled at the point when a divisional application was filed. A board had no power to exempt an applicant from compliance with this substantive requirement. No substantive rights were established in a divisional application before the actual filing date of the divisional application. Substantive rights which were lost in the parent application could not be re-established in the divisional application by applying Art. 122 EPC 1973.