3.1.1 Applicant of earlier application entitled to file divisional application

In J 20/05 the Legal Board held that only the applicant of the earlier (parent) application was entitled to file the divisional application. It stated that, fundamentally, it is the entitlement acquired by virtue of the parent application that gives the right to file a divisional application. This means that the rights in respect of the divisional application derivable from the parent application extend to, but are also limited to, the rights existing in the parent application at the filing date of the divisional application. The entitlement to file a divisional application under Art. 76 and R. 25 EPC 1973 (now R. 36 EPC) was a procedural right that derived from the applicant's status as applicant in the earlier application (with reference to J 2/01).

In J 34/86 the Legal Board allowed an application to be filed as a divisional application by a party other than the registered applicant for the parent application. This case concerned, however, a particular set of circumstances. The applicant for the parent application had been ordered by a US court to assign all property rights in the invention to the person who became the applicant for the divisional application, and the applicant for the parent application had already signed an assignment to that effect.