Thanks to Laurent Teyssedre's blog, the IPKat has learned of a new referral being made to the EPO Enlarged Board of Appeal relating to when divisional applications can be filed. The question being asked goes like this:
"Is an application which has been refused by a decision of the Examining Division thereafter still pending within the meaning of Rule 25 EPC 1973 (Rule 36(1) EPC) until the expiry of the time limit for filing a notice of appeal, when no appeal has been filed?"The decision leading to the question, J 2/08, has not yet been uploaded to the EPO's decision database, but can be found here, courtesy of Laurent. The case relates to European application number 05027368.9.
What happened during prosecution should be fairly clear, given the above question. The IPKat, who thinks that the answer to the question is a clear 'no', merely wonders why the applicant didn't follow the apparently normal (yet, in the EPO's eyes, abusive) procedure of filing a divisional application (without, of course, paying the fees) on the day before oral proceedings were scheduled, just on the off chance that their application was refused. Failing that, they could have filed an appeal just for the purpose of keeping the application pending. Couldn't they?