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14/08/2012

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the EBA states that the suesinpsve effect of an appeal is not the reason that a divisional can be filed during the appeal period, I might indeed be a little too quick to conclude that a divisional can validly be filed during a period in which the application is deemed to be withdrawn and further processing can be requested.The EBA relies heavily on Art. 67(4) EPC, which provides that an application shall be deemd never to have had the effects of provisional protection when it has been "withdrawn", "deemed to be withdrawn" or "finally refused". The EBA then reasons that an application is "finally refused" only when the appeal period has expired. However, there is clearly no need for the period for requesting further processing to have expired for an application to be "deemed to be withdrawn".Since r. 3.2.4 stresses that an application is pending if it is in a status in which "substantive rights" deriving from the application under the EPC are (still) in existence, I guess it could be argued that an application is not pending if it is "deemed to be withdrawn", even though the applicant can simply request further processing and thereby revive those substantive rights retroactively.So for the moment I withdraw my earlier suggestion that a divisional may now also be filed during the period in which further processing can be requested.Does a European patent application give rise to any other "substantive rights" apart from the provisional protection of Art. 67? Given that provisional protection only exists from the date of the publication of the application, one could wonder if any "substantive rights" exist before the publication... If that is not the case, G 1/09 seems to suggest that a divisional application cannot be filed before publication. This is almost certainly not the intention of the EBA, but still.What other substantive right am I missing?Is it sufficient that future publication and therefore future provisional protection is more or less guaranteed once various fees have been paid and various acts have been performed? Even if that is the case, it would be required to pay those fees and performs those acts before a divisional can be filed.Is there anybody else who believes that G 1/09 might imply that a divisional cannot be filed before publication of the (parent) application?

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