4.1.2 No preclusive effect of a decision with respect to identical requests in the other procedure

The consequence of the procedural independence of the divisional application can be seen in T 1254/06. In this case, the examining division had refused the divisional application and the applicant did not appeal. In the appeal proceedings concerning the parent application (in which the applicant had made the same requests as in the proceedings concerning the divisional application) the question arose whether the legal force of a refusal decision in respect of the divisional application also affected the parent application procedure to the extent that it could prevent the EPO (including the boards of appeal) from dealing with the substance of identical requests. The board stated that the principle that both proceedings were independent meant that a refusal decision in one procedure did not have a preclusive effect with respect to identical requests in the other procedure. This applied in particular when, as in this case, the refusal decision was made not by the board of appeal but by the examining division, because the first-instance administrative decision did not have true res judicata effect.

In T 1266/19 the board recalled that it was established case law that proceedings against a parent and a divisional application were separate independent proceedings. Thus, the facts, evidence, and submissions made or filed in these proceedings were not automatically part of the parent procedure and vice versa. No exceptional circumstances in the sense of Art. 13(2) RPBA could be inferred from decisions relating to a different case, or arguments submitted therein. Whether, as an effect of res judicata, subject-matter on which a final decision is taken by a board for a parent or divisional application cannot be pursued in another application or patent could be left open, as the facts were in any case not identical.

For decisions dealing with the issue of a cross-procedural res judicata effect, see chapter II.F.2.4.3 above.