2. Applicants filing such (divisional) applications are released from their obligation to file a certified copy of the previous application within two months (Rule 40(3) EPC), provided the latter was a European application 1 or an international one filed with the EPO as receiving office under the Patent Cooperation Treaty (PCT).
3. In all other cases, notwithstanding the Guidelines for Examination in the EPO as currently worded (A-II, 126.96.36.199, A-IV, 1.3.1), they must file a certified copy of the earlier application i.e. the original application to which reference is made within the time limit under Rule 40(3) EPC. This means that for a divisional application referring to an international application which has entered the European phase (Euro-PCT application) and was not filed with the EPO as receiv- ing office, they must file a certified copy of the international (PCT) application originally filed with the receiving office.
1 Including European applications which were themselves divided out of an earlier application.
4. The earlier application must be trans- lated into an EPO official language if necessary. No translation need be filed if the EPO already has a translation of the original application, because in such cases it puts a copy on file free of charge (Rule 40(3) EPC).
5. If the applicant fails to file a certified copy of the earlier application in due time (Rules 40(3) and 55 EPC), the (divi- sional) application is not dealt with as a European patent application (Article 90 (2) EPC). Within two months from notifi- cation of the communication noting such a loss of rights, the applicant may request a decision (Rule 112(2) EPC).
Date retrieved: May 20, 2014