R. 36 EPC (former R. 25 EPC 1973) requires that a divisional application only be filed if it is in relation to any pending earlier patent application. In G 1/09 (OJ 2011, 336) the Enlarged Board of Appeal decided that a "pending (earlier) European patent application" in the specific context of R. 25 EPC 1973 (R. 36(1) EPC) was a patent application in a status in which substantive rights deriving therefrom under the EPC were (still) in existence.
Note however that a divisional application cannot be validly filed during proceedings that have been stayed, see in this chapter II.F.3.1.2.
Source: http://www.epo.org/law-practice/legal-texts/html/caselaw/2019/e/clr_ii_f_3_5.htm
Date retrieved: 17 May 2021
14 references found.
Click X to load a reference inside the current page, click on the title to open in a new page.EPC Implementing Rules
Case Law Book: II Conditions to be met by an Application
XCLR II F 3.5.4 Pendency in case of refusal of earlier application against which no appeal was filed
XCLR II F 3.5.5 Pendency in case of refusal of earlier application against which an appeal was filed
XCLR II F 3.5.6 Pendency in case of deemed withdrawal of earlier application and request for re-establishment
XCLR II F 3.5.7 Pendency in case of deemed withdrawal of earlier application and no reaction to loss of rights communication under Rule 112(1) EPC