3.4.
Requirement of pending earlier application 

R. 36 EPC (former R. 25 EPC 1973) requires that a divisional application only be filed if it is in relation to any pending earlier patent application. In G 1/09 (OJ 2011, 336) the Enlarged Board of Appeal decided that a "pending (earlier) European patent application" in the specific context of R. 25 EPC 1973 (R. 36(1) EPC) was a patent application in a status in which substantive rights deriving therefrom under the EPC were (still) in existence.

As to the related question whether a divisional application can be validly filed during proceedings that have ben stayed, see above in this chapter II.F.3.1.2, "Filing of divisional application during stay of proceedings".

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