3.3. Language for filing divisional application

According to R. 36(2), first sentence, EPC, a divisional application shall be filed in the language of the proceedings of the earlier application. According to R. 36(2), second sentence, EPC, if the latter was not in an official language of the European Patent Office, the divisional application may be filed in the language of the earlier application; in such a case, a translation into the language of the proceedings for the earlier application shall be filed within two months of the filing of the divisional application.

In J 13/14 the Legal Board observed that a divisional application of an earlier application, which was filed in an EPO official language, had also to be filed in the EPO official language of the earlier application. Otherwise, it would have been filed in an inadmissible language. A correction of the language deficiency by means of a translation into the language of the proceedings for the earlier application was neither required under R. 36(2), second sentence, EPC nor was it even admissible in view of the wording of that provision and of G 4/08 (OJ 2010, 572). A correction under R. 139, first sentence, EPC or Art. 123(2) EPC was also not possible. The legal consequence of the non-compliance with the language requirements was that the divisional application could not be treated as a valid divisional application by analogous application of Art. 90(2) EPC.

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