EPO Enlarged Board of Appeal Says EP Application is Pending Until Expiry of Appeal Period (G 1/09)

Rule 25(1) EPC 1973 (and equally Rule 36(1) EPC) states "The applicant may file a divisional application relating to any pending earlier European patent application". In the EP patent application 01102231.6 the question arose whether or not for an application that has been refused in oral proceedings a divisional application can still be filed until the lapse of the two-months time limit for filing a notice of appeal according to Art. 108 EPC. I think that a fair understanding of the basic principles of procedural law should lead to the conclusion that any legal case is pending until a final decision enters into effect - i.e. until no remedies are given any more. Quite to the contrary, the Examination Division took the position that upon refusal of the application its pendency ended and no division could be filed after that point in time. However, as already sketched by the IPKat, this understanding would lead to the strange situation that "if an appeal is then filed against the decision the application miraculously becomes pending again" such that "an application could be considered to have been pending only in retrospect ...Zum vollständigen Artikel

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