In a welcome move the EPO has further amended the Rules, bringing clarity to the deadline for filing divisional applications.
Rule 36(1)(a) EPC – Deadline for Filing Divisional Applications
Under the rule change that came into effect on 1 April 2010, applicants were required to file all divisional applications “before the expiry of a time limit of 24-months from the Examining Division’s first communication in respect of the earliest application for which a communication has been issued”. While the EPO Examination Guidelines indicated that communications under Rule 71, paragraph (1) or (2) or Rule 71 paragraph (3) would start the divisional deadline, it was unclear whether other, earlier, communication issuing from the Examining Division could also start the deadline because they seemed to be encompassed by the wording of the Rule.
The EPO has now amended Rule 36(1)(a) to recite “before the expiry of a time limit of 24-months from the Examining Division’s first communication under Article 94, paragraph (3), and Rule 71, paragraph (1) or (2), or Rule 71, paragraph (3)”. This makes it clear that only two types of communication can start the two-year term for filing divisional applications: a substantive examination report (i.e. a European office action) and a communication proposing a text for grant (i.e. a European notice of allowance), respectively.
This Rule will have retrospective effect. As such, it shall be applied to the filing of all divisional applications from 1 April 2010.
The Decision of the Administration Council may be found here.