European patent practitioners won't need reminding that EPC Rule 36 was amended in 2009 to limit the time within which a divisional application could be filed, imposing an absolute cut-off of two years from the first examination report (with limited exceptions).
The EPO came in for a lot of stick then (and, to be honest, ever since) for the lack of proper consultation at the time that Rule 36 was amended, and for ignoring the almost universally negative input from most professional bodies and users of the patent system who did have the opportunity to comment.
|24 months can pass very quickly ...|
Input is sought by means of an open, online consultation on how Rule 36 ought to be amended.The structure of the consultation is simple: a web page with six questions, as follows:
(It would be useful to learn about your background and / or your professional activity, as well as to get some insights into the extent to which your comments are the result of direct experience)
As the consultation page explains, the number of divisionals filed has actually increased since the new regime was introduced. Additionally, one of the practices preceived as "abusive" under the old regime, i.e. the filing of a divisional on the day before oral proceedings to maintain pendency, has been made largely unnecessary by Decision G 1/09 which allows for divisionals to be filed after refusal and up to the time limit for filing a notice of appeal.
So if (like this Kat) you have been critical of the 24 month cut-off, which often has expired long before the examination proceedings have crystallised the issues and thus shown the need to file a divisional, now's your chance to help craft the perfect replacement for Rule 36.
The EPO deserves great credit for having the open-mindedness to revisit this controversial provision, and thanks are also due to those involved in epi and other organisations who have worked behind the scenes to have this issue re-opened.