3.5.8 Pendency in case of deemed withdrawal of earlier application and no reaction to loss of rights communication under Rule 112(1) EPC

In J 10/16 the Legal Board found that a divisional application could not be filed from the point in time at which the parent application was deemed to have been withdrawn (here: after expiry of the six-month period under R. 161(1) EPC) and if the applicant did not act on the communication noting this loss of rights under R. 112(1) EPC. Where, after receiving such a communication, the applicant did not apply for a decision under R. 112(2) EPC, the rights were lost on expiry of the original unobserved time limit (see e.g. J 4/86, OJ 1988, 119; G 1/90, OJ 1991, 275; G 4/98, OJ 2001, 131; J 19/01; J 9/02); the communication became final; and the proceedings came to an end also on expiry of the original time limit – unless the legal effect in question was set aside by either further processing or re-establishment of rights. Communications under R. 112(1) EPC and decisions under R. 112(2) EPC were purely declaratory findings of a loss of rights already having arisen by operation of law (see J 1/05).