Amendment to Rule 36 of the Implementing Regulations to the EPC abandons the time limits for filing divisional applications. The amendment will enter into force on April 1, 2014. The amendment applies to all pending applications.
1. With effect from April 1, 2010, time limits for filing European divisional applications were introduced, a requirement unknown in any other modern patent system. Strong objections in the legislative process were in vain but later experience with the new system showed that they had been fully justified and that establishing a reliable system for monitoring these time limits was hardly possible (see Wegner/Teschemacher in epi Information 2/2010, 53).
In reaction to such complaints, the EPO took certain administrative measures including the indication of the first examination communication report triggering the time limit for voluntary division (OJ EPO 2011, 273). Apart from the fact that these measures turned out not to be reliable, they did not touch the fundamental problem of the new system, i.e. the need for the applicant to make a decision on the filing of a divisional application before having a sound basis for such a decision.
2. Considering the still increasing instead of decreasing numbers of divisionals and the continuing complaints of the users, the EPO started a user consultation which had the foreseeable result that the users favoured the reinstatement of the previous Rule 36 EPC and the EPO made a corresponding proposal which was adopted by the Administrative Council on October 16, 2013.