3.5.2 Pendency before the EPO acting as patent-granting authority according to the EPC

In J 18/09 (OJ 2011, 480) the Legal Board of Appeal decided that an international application which did not fulfil the requirements according to Art. 22 PCT for entering the European phase was not pending before the European Patent Office and therefore could not be considered a pending earlier European patent application pursuant to R. 36(1) EPC. The term "pending earlier European patent application" under R. 36(1) EPC included the requirement that the application must be pending before the European Patent Office acting as patent-granting authority according to the EPC. On the basis of the provisions of the PCT and the EPC, a Euro-PCT application not having entered the European phase was not a pending earlier European application within the meaning of R. 36(1) EPC. See also G 1/09, point 3.2.5 of the Reasons.