3.1.2 Filing of divisional application during stay of proceedings

In J 20/05 application proceedings had been suspended under R. 13 EPC 1973 (now R. 14 EPC) because of pending national entitlement proceedings. The Legal Board decided that the applicant was not entitled to file a divisional application relating to that application while the proceedings remained suspended (confirmed in G 1/09, OJ 2011, 336).

In J 9/12 the Legal Board added that to allow the filing of a divisional application by an applicant whose entitlement was challenged would be inconsistent with and contrary to the fundamental objective of R. 14(1) EPC, which was to preserve any potential rights a third party might have to the grant of a patent for the earlier application in dispute.