3.5.3 Pendency in case of grant of earlier application

An application is pending up to (but not including, see J 7/04, J 24/10) the date on which the European Patent Bulletin mentions the grant of the European patent or up to the date on which the application is refused, withdrawn or deemed withdrawn (J 28/03; for the situations of refusal and (deemed) withdrawal of the earlier application, see in this chapter II.F.3.5.5 to 3.5.8). By way of an obiter dictum, the Enlarged Board of Appeal held in G 1/09 (OJ 2011, 336) that, in the case of a decision to grant, the pending status of the European patent application normally ceased on the day before the mention of its grant was published since from that point in time substantive rights under the EPC were no longer derived from the patent application, but now derived from the granted patent.

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