2 November 2010

EPO Clarifies Two Year Time Limit for Filing a Divisional - Revision to Rule 36 EPC

EPO Clarifies Two Year Time Limit for Filing a Divisional - Revision to Rule 36 EPC

Rule 36(1) EPC has been amended to remove ambiguity regarding the time limit for filing voluntary divisional applications.

Under previous Rule 36(1), the two year period for filing voluntary divisional applications ran from the date of the Examining Division's first communication in respect of the earliest application.

Although not mentioned in Rule 36(1) itself, the 'first communication' was widely reported to include only substantive communications, such that an earlier non-substantive communication from the Examining Division would not count as a 'first communication'.

The ambiguity has now been removed with the introduction of revised Rule 36(1) which makes clear that only an office action or a notice of allowance from the Examining Division, which ever is issued earlier, can start the two year period.