Once a patent application has been filed, and before it has been granted, refused or withdrawn, the application is considered to be "pending", i.e. awaiting some further action before a final decision is taken. One thing that can only be done while a European application is pending is filing of a divisional application. If the application has already been granted, or has been refused or withdrawn, or if the two year period under Rule 36 has passed, it is too late. Or is it?
"Is an application which has been refused by a decision of the Examining Division thereafter still pending within the meaning of Rule 25 EPC 1973 (Rule 36(2) EPC) until the expiry of the time limit for filing a notice of appeal, when no appeal has been filed?"
"[U]nder the EPC a patent application which has been refused by the Examining Division is thereafter still pending within the meaning of Rule 25 EPC 1973 until the expiry of the period for filing an appeal and, on the day after, is no longer pending if no appeal is filed. The same conclusion applies to Rule 36(1) EPC 2000 both in its former and its current version."
We can all now breath a sigh of relief, and get back to all those divisional applications that have to be filed by Friday.
The IPKat thanks Simon Roberts (BT) for the tip.