3.5.9 Pendency in case of withdrawal of earlier application

The case underlying J 20/12 concerned a parent application which had been unconditionally withdrawn but the appellant had filed a request to correct this withdrawal. This request was ultimately refused by the Legal Board of Appeal (in decision J 1/11). After the request for correction, the appellant had filed a divisional application, which the Receiving Section decided not to process because the parent application had been withdrawn and, according to R. 36(1) EPC, an applicant could only file a divisional application relating to any pending earlier European patent application. The Legal Board saw no difference between the case of an application deemed to be withdrawn due to the non-payment of fees (which had been dealt with in J 4/11, OJ 2012, 516) and an application that had been voluntarily withdrawn by a communication from the applicant. In neither case was the withdrawal the result of a decision taken by the EPO. From the wording of Art. 67(4) EPC ("withdrawn" in contrast to "finally refused"), and the further clarification given in decision J 4/11, it could be concluded that an application was no longer pending as from the moment it had been withdrawn. This was not altered by the possibility of filing a request for correction of a withdrawal under R. 139 EPC, nor by the actual filing of such a request.