(1) The applicant may file a divisional application relating to any pending earlier European patent application, provided that:
(a) the divisional application is filed before the expiry of a time limit of twenty-four months from the Examining Division's first communication in respect of the earliest application for which a communication has been issued, or
(b) the divisional application is filed before the expiry of a time limit of twenty-four months from any communication in which the Examining Division has objected that the earlier application does not meet the requirements of Article 82, provided it was raising that specific objection for the first time.
(2) A divisional application shall be filed in the language of the proceedings for the earlier application. If the latter was not in an official language of the European Patent Office, the divisional application may be filed in the language of the earlier application; a translation into the language of the proceedings for the earlier application shall then be filed within two months of the filing of the divisional application. The divisional application shall be filed with the European Patent Office in Munich, The Hague or Berlin.
It looks like the IPKat's earlier suspicions about the proposed amendments have been confirmed, and the EPO will be holding to their promise of preventing 'abusive' divisional applications from being filed in future. The IPKat is, however, not certain about how the new Rule will work in practice. Will applicants be prevented from filing a divisional to cover embodiments no longer covered as a result of a limiting amendment, if 2 years have passed since the first communication under Article 94(3)? Will it be necessary to provoke an objection under Article 82 by submitting multiple independent claims so that a divisional application can be filed? What would happen if an objection under Article 82 were to be deliberately provoked; will this set the clock running again? Will there be a rush of divisional applications filed within 6 months of the rule coming into force? We shall presumably find out all this, and more, in due course...