4.1.2 No preclusive effect of a decision with respect to identical requests in the other procedure

The consequence of the procedural independence of the divisional application can be seen in T 1254/06. In this case, the examining division had refused the divisional application and the applicant did not appeal. In the appeal proceedings concerning the parent application (in which the applicant had made the same requests as in the proceedings concerning the divisional application) the question arose whether the legal force of a refusal decision in respect of the divisional application also affected the parent application procedure to the extent that it could prevent the EPO (including the boards of appeal) from dealing with the substance of identical requests. The board stated that the principle that both proceedings were independent meant that a refusal decision in one procedure did not have a preclusive effect with respect to identical requests in the other procedure. This applied in particular when, as in this case, the refusal decision was made not by the board of appeal but by the examining division, because the first-instance administrative decision did not have true res judicata effect. For decisions dealing with the issue of a cross-procedural res judicata effect, see chapter II.F.2.4.3 above.