4.1.3 Filing a divisional application not a response to a communication under Article 94(3) EPC

In case J 5/07 the appellant had failed to file observations according to Art. 96(2) EPC 1973 (Art. 94(3) EPC). The appellant's request for further processing was rejected on the ground that the omitted act was not completed in due time (Art. 121(2) EPC 1973; R. 135(1) EPC). The appellant filed an appeal against this decision, arguing that the omitted act was in fact completed because in response to the communication a divisional application was filed by the appellant. The Legal Board held that, as a consequence of the principle that a divisional application was legally and administratively separate and independent from the grant proceedings concerning the parent application, the filing of a divisional application could not constitute a response to the invitation by the examining division in the parent application within the meaning of Art. 96(3) EPC 1973 (now Art. 94(4) EPC).