EPO Abolishes 24-Month Deadline for Dividing Applications; Allows Additional Searches

01.11.2013

On 16 October 2013 the European Patent Administrative Council abolished the 24-Month Deadline for filing a European Divisional Application. A further decision enables Applicants an opportunity to request the European Search Division to conduct additional Search of further claimed inventions.

Abolition of the 24-Month Deadline for Dividing a European Application

The Administrative Council decided to revert to regulations which were custom prior to 1 April 2010, with respect to the time limit for filing European Divisional Applications. Prior to 1 April 2010, Divisional Applications were eligible for filing so long as the Application to be divided was pending, i.e., so long as the parent Application was not yet granted or finally refused. The amendment which took into effect on 1 April 2010, included a further limitation to the timeframe for Divisional filings – All Divisional Applications must be filed within 24 months from the Examining Division’s first communication in respect of the earliest European Application. This restriction was frequently criticized since it significantly narrowed the timeframe for protecting sections of the invention which would not be covered by the initial Application.

The current decision enters into force on 1 April 2014 and will apply to all Divisional Applications filed on or after this date. Amended Rule 36(1) of the European Patent Convention will read as follows: “(1) The applicant may file a divisional application relating to any pending earlier European patent application”. Accordingly, the 24-month time limit for filing Divisional Applications is repealed, and the only remaining limitation for filing Divisional Applications is so long as the earlier application is pending. Thus, a further window of opportunity for filing Divisional Applications will be created as of 1 April 2014 and onwards for pending cases in which the 24 month time limit has expired prior to this date. Note, an additional fee will be included as part of the filing fee for Divisional Applications of second or subsequent generation. In other words, the filing of Divisional Applications in respect of earlier Divisional Applications will be subjected to an additional fee, which will increase with each subsequent generation of Divisional Application.

Generally, Divisional Applications are filed with the purpose of protecting further claims, claims which are broader, non-examined, and/or re-focused. Also, the value of one’s IP portfolio as well as the ability to protect an invention from infringement is enhanced when having, along with a granted Patent, a further ‘open’ Application.

If you are interested in your European Application(s) to benefit from the new rules which are effective as of 1 April 2014, we suggest that you contact us, and we will evaluate your Application(s) to determine the recommended strategy for enabling the desired Divisional Application(s) to be filed.

Allowing Additional Search of further inventions

The Administrative Council also decided to amend Rule 164 of the European Patent Convention to enable further inventions identified within the European Application to be searched. According to the current regulation, if the European Patent Office deemed the claims to lack unity of invention, only the first identified invention was searched. This rule too was frequently criticized as it resulted in Applicants who were interested in protecting subject matter which were classified as second or further inventions, to reluctantly file costly Divisional Application(s) in order to cover the desired matter. Under the new revision, the Applicant is given an opportunity to pay additional Search Fees within a time limit of 2 months, and by doing so, enabling further groups of claims to be searched. The Applicant may then choose between the searched inventions, to prosecute. The current decision enters into force on 1 November 2014.

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