3.6.2 Interpretation of Rule 36(1)(a) and (b) EPC

In J 13/13, the Receiving Section had considered the applicant's filing of a divisional application on 7 February 2012 to be too late because the examining division had already issued a first communication objecting to a lack of unity of invention (Art. 82 EPC) in the parent application on 30 October 2009. The applicant contested this finding on the basis that the examining division had issued a second communication objecting to an infringement of R. 43(2) EPC on 11 October 2011 and so the time limit ought to have been calculated in accordance with R. 36(1)(b) EPC rather than R. 36(1)(a) EPC (each as in force from 26 October 2010 until 31 March 2014). The Legal Board disagreed: the communication issued on 30 October 2009 had to be regarded as both a "first communication" within the meaning of R. 36(1)(a) EPC and, since it had raised an objection under Art. 82 EPC, a communication within the meaning of R. 36(1)(b) EPC. By contrast, the objection raised in the second communication did not meet the R. 36(1)(b) EPC requirements because R. 43(2) EPC said it was "[w]ithout prejudice to Article 82", which had to be interpreted as meaning that its provisions had no bearing for the purposes of that article. The Receiving Section had therefore been right to calculate the time limit as running from the issue of the first communication; it had triggered both the time limit under R. 36(1)(a) EPC and that under R. 36(1)(b) EPC.

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