By decision dated 16 October 2013 the Administrative Council of the European Patent Organisation amended Rules 36(1) and 38 EPC to allow the filing of divisional applications as long as the parent application is pending and to establish an additional fee as part of the filing fee for divisional applications. Rule 135(2) EPC was amended accordingly by deleting the reference to Rule 36(1) EPC.

By decision dated 13 December 2013 the Administrative Council amended Article 2(1) of the Rules relating to Fees (RFees) to set the amounts of the additional fee.

Amended Rules 36, 38 and 135 EPC and Article 2(1) RFees will enter into force on 1 April 2014, and will apply to divisional applications filed on or after that date.

I. Filing requirements for divisional applications

Upon entry into force of the amendments, any pending European patent application or Euro-PCT application which has entered the European phase or for which a request for early processing is effective can be divided, even if the time limits applicable between 1 April 2010 and 31 March 2014 have already expired. ^[ * ]

II. Additional fee for divisional applications

An additional fee forming part of the filing fee will be payable for divisional applications filed in respect of any earlier application which is itself a divisional application, i.e. for divisional applications of second or subsequent generations.

The amounts of the additional fee, as set out in new item 1b of Article 2(1) RFees, are the following:

• for a divisional application of the second generation: EUR 210
• for a divisional application of the third generation: EUR 420
• for a divisional application of the fourth generation: EUR 630
• for a divisional application of the fifth and any subsequent generation: EUR 840

Example:

In this example, no additional fee would be due in respect of EP2 and EP3. The additional fee for second-generation divisional applications would be payable for EP4, and that for third-generation divisional applications for EP5.

The additional fee is payable as part of the filing fee for European divisional applications of second and subsequent generations. Therefore, it must be paid within one month of filing the divisional application, as laid down in Rule 36(3) EPC.

If the additional fee is not paid in time, the divisional application is deemed to be withdrawn (Rule 36(3) EPC). The EPO will then notify the applicant of its loss of rights under Rule 112(1) EPC. The applicant can request further processing under Article 121 and Rule 135 EPC.

III. Request for grant of a European patent (EPO Form 1001)

As from the entry into force of the amendments, the following changes to EPO Form 1001 will be made:

• Sections 27.1 and 27.2 concerning the time limits under Rule 36(1)(a) and (b) EPC respectively (as in force until 31 March 2014) will be deleted.
• The generation to which the divisional application belongs must be indicated by ticking the appropriate box in new Section 27.1.

The information about the earlier application to be provided in Section 27 remains unchanged.

IV. Information in the European Patent Register

The date of despatch of the examining division’s first communication in respect of the earliest application for which such communication has been issued will no longer be entered in the European Patent Register if this communication is issued on or after 1 April 2014. The information on the communications issued before that date will, however, continue to be displayed.

V. Outdated publications

Any information published by the EPO about the time limits in force until 31 March 2014 for the filing of divisional applications should be disregarded after that date.