3.5.6 Pendency in case of refusal of earlier application against which an appeal was filed

In J 23/13 the applicant had filed the divisional application after the filing of the notice of appeal against the decision refusing the parent application, but before the time limit for filing the statement of grounds of appeal had expired; since no statement of grounds was filed, the board rejected the appeal against the refusal of the parent application as inadmissible. The board in J 23/13 observed that the divisional application had been filed while the time limit for filing the grounds of appeal was still running. The fact that the appeal was later rejected as inadmissible could not change the fact that, on the date when the divisional was filed, substantive rights were still in existence (G 1/09, OJ 2011, 336).

In J 22/13 the applicant had filed the divisional application, in contrast to the situation in J 23/13, after expiry of the time limit for filing the statement of grounds of appeal. The application could thus not be treated as a divisional application.