3.5. Requirement of pending earlier application

R. 36 EPC (former R. 25 EPC 1973) requires that a divisional application only be filed if it is in relation to any pending earlier patent application. In G 1/09 (OJ 2011, 336) the Enlarged Board of Appeal decided that a "pending (earlier) European patent application" in the specific context of R. 25 EPC 1973 (R. 36(1) EPC) was a patent application in a status in which substantive rights deriving therefrom under the EPC were (still) in existence.

An application is pending up to (but not including, see J 7/04, J 24/10) the date on which the European Patent Bulletin mentions the grant of the European patent or up to the date on which the application is refused, withdrawn or deemed withdrawn (J 28/03; for pendency in case of grant of the earlier application, see chapter II.F.3.5.3 and 3.5.4; for the situations of refusal and (deemed) withdrawal of the earlier application, see in this chapter II.F.3.5.5 to 3.5.9).

Note however that a divisional application cannot be validly filed during proceedings that have been stayed, see in this chapter II.F.3.1.2.