October 2013

EPO Administrative Council amends provisions of the EPC for divisional applications

The provisions of the European Patent Convention regarding divisional applications have again been changed. In consequence, applicants will no longer be confronted with the difficult monitoring of time limits in patent families.

As of 1 April 2014, a divisional application may – as previously – be filed relating to any pending European patent application. The possibility for filing a divisional application will thus no longer be limited based on a timing of any official communications in the application family.

On or after 1 April 2014, provided there is still at least one pending European patent application, divisional applications may validly be filed even for application families for which the 24 months periods according to current Rule 36 (1) EPC have already expired.

The change, however, introduces an additional fee as part of the filing fee, to be paid for second and higher generation divisional applications. The additional fees only apply to divisional applications filed based on an application which is a divisional application itself.

Details about the amount of the additional fee are currently not known to us. In any case, it may be expected that the amount of the additional fee increases progressively with the generations up to a certain level.

The decision of the Administrative Council of 16 October 2013 amending Rules 36, 38 and 135 of the Implementing Regulations to the European Patent Convention can be found here.

Eisenführ Speiser will continue to support you as full-service firm for all IP matters and will be at your disposal as regards questions concerning the amended provisions of the EPC.

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