Rule 36 EPC: European divisional applications

Text of Rule 36 EPC

In plain English

Since 1 April 2014 there is no fixed window for divisionals. You can divide from any earlier European application that is still pending, at any stage, including during appeal.

Pendency is the whole question. The Guidelines (A-IV, 1.1.1) set the main cases. An application is pending up to, but not on, the date the European Patent Bulletin mentions its grant. A refused application with no appeal stays pending until the appeal period expires (G 1/09). An application you withdraw stays pending up to and including the day your withdrawal reaches the EPO. An application deemed withdrawn for a missed time limit stops being pending when that time limit expires, unless the loss of rights is later remedied.

There is one helpful twist: when a renewal fee is unpaid, the parent stays pending until the end of the six-month grace period under Rule 51(2), even if the fee is never paid.

Pendency is a substantive condition, not a time limit. If the parent was no longer pending, further processing and re-establishment cannot rescue the divisional.

The divisional must be filed at the EPO in the language of the proceedings of the parent, or in the parent's original language with a translation within two months (Rule 36(2)). The filing and search fees are due within one month. A divisional of a divisional attracts an extra fee that rises by generation: €235 for the second generation, €480 for the third, €715 for the fourth and €955 from the fifth (Rules relating to Fees, item 1b, from 1 April 2026). Renewal fees already due for the parent must be paid for the divisional too (Rule 51(3)).

Deadlines and fees

Key decisions

• G 1/09 (Pending application/SONY) : Where no appeal is filed, a refused application is pending until the time limit for filing a notice of appeal expires.
• G 1/06 (Sequences of divisionals/SEIKO) : In a chain of divisionals, everything disclosed in a divisional must be derivable from each preceding application as filed.

Common objections

Parent not pending

The EPO issues a Rule 112(1) communication that the application will not be treated as a divisional. If you think the finding is wrong, apply for a decision within two months (Rule 112(2)).

Added matter over the parent

See Article 76(1). The divisional's content is checked against the parent as filed and, for chains, every earlier generation.

Drafting and prosecution tips

• Treat the publication of the mention of grant as the real deadline, and file well before it rather than on the last possible day.
• If an appeal is likely, file any divisional before the appeal period ends rather than relying on the appeal being admissible.
• Budget for the generation fee and for back renewal fees, which can make a late divisional expensive.