Pendency of international patent applications and Rule 36(1) EPC

Abstract

The Legal Board of Appeal had to determine whether an international patent application that did not fulfil the requirements of Article 22 of the Patent Cooperation Treaty (PCT) for entering the European phase could be considered to be a pending European patent application under Rule 36(1) EPC. This was of interest to the applicant as he wished to file a European divisional patent application. The Board found that a Euro-PCT application that had not entered the European phase is not a pending earlier European application in the sense of Rule 36(1) EPC, and thus that no European divisional patent application could be filed.