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EPO Deadline for Divisional Applications
On 1st April 2010, the European Patent Office introduced new practice procedures relating to Divisional Applications. Under the previous practice regime, an applicant had the opportunity to file a divisional application at any stage during the pendency of the parent application (which itself could have been a divisional application). It was believed by some that this system was open to abuse and allowed applicants to (i) duplicate proceedings by filing a divisional application for the same subject matter and (ii) maintain the pendency of their applications up to the expiry of the 20 year patent term by filing a series of divisional applications.
From 1st April 2010, an applicant must file their divisional application within 2 years of the first communication from the Examining Division on the parent application. For a chain of divisional applications, the 2 year time limit runs from the date of the first communication from the Examining Division in respect of the earliest application for which a communication has been issued. This change will relate to all patent applications pending or filed on or after 1st April 2010. If the two year period has already expired or will expire before 1st October 2010, the applicant will have until 1st October 2010 to file a divisional application.
There is an exception to the above rule in cases where the Examining Division raises a Unity of Invention objection for the first time in a subsequent communication. In those cases, the applicant will have 2 years from the date of the communication raising the Unity of Invention objection to file their divisional application.
Therefore, a thorough review of all current cases is recommended prior to 1st October 2010 to see whether it is necessary or advisable to file divisional applications for those cases.