EPO Enlarged Board Decision in G1/09

29 September 2010

The EPO Enlarged Board of Appeal has issued its decision in case G1/09 (‘Pending application’).

In their decision the Board decided that, following a decision to refuse a European Patent application, the application remains ‘pending’ up until the end of the time limit for appealing the decision (two months from notification of the written decision). 

This decision is significant as it means a divisional application can be validly filed during the appeal period irrespective of whether the decision to refuse is appealed.  This is a change from the previous position at the EPO, which was that a divisional application could not be validly filed during the appeal period unless the applicant filed a notice of appeal against the decision to refuse. 

Note, however, that it will still be necessary to observe the other rules governing when divisional applications may be filed (more information is available here).

If you would like more information about the decision, please feel free to ask your usual Mewburn contact.

Published on 29th September 2010

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