T 0592/15 - Filing divisional in appeal

Key points

• In this examination appeal, the board rejects the appeal and refuses the applicant's request to delay the taking of the decision until a divisional application is filed.
• As a comment, the Register shows that a divisional application was in fact filed. As a further comment, it is not clear to me why you would ask for such a delay rather than just file the divisional application - the fees for the divisional can be paid later.

EPO Headnote
A request to postpone the taking of the decision on the allowability of an appeal at least until a divisional application is filed would oblige a board to examine questions outside of the framework of the appeal concerned and is therefore to be refused

EPO T 0592/15 - link

3. As there is no admissible claim request of the appellant, the appeal is to be dismissed.

4. The request that the "application be maintained pending until [a] divisional application has been filed"

4.1 A divisional application in the sense of Article 76(1) EPC can be filed as long as the earlier European patent application is pending (Rule 36(1) EPC). In the case where a decision is taken on the allowability of an appeal, a European patent application is pending at least up to the point in time when the decision is taken (J 5/08, Reasons 20, referring to Rule 25 EPC 1973 corresponding to Rule 36 EPC).

4.2 The board therefore understands the appellant's submissions (see VIII above) to request that the board postpones the taking of the decision on the allowability of the present appeal at least until the appellant has filed a divisional application.

4.3 According to the jurisprudence of the boards of appeal requests and actions obliging a board to examine questions outside of the framework of the appeal concerned are not admissible and cannot be dealt with in substance within such appeal proceedings (T 502/02, Reasons 1).

4.4 In the case at hand the request to postpone the taking of the decision on the allowability of the appeal at least until a divisional application is filed would require the board to investigate whether the appellant has eventually indeed filed a divisional application and, as the case may be, to even postpone the oral proceedings. The question of whether a divisional application is filed is, however, a question outside of the framework of the present appeal proceedings in particular because the procedure concerning a divisional application and the procedure concerning the parent application are in principle independent (G 4/98, Reasons 5, last paragraph).

Also, the appellant would gain complete control over the duration of the present appeal proceedings including the possibility of having them pending ad infinitum if no divisional application was filed at all.

4.5 For the above reasons, the board refuses the appellant's request to postpone the taking of the decision on the allowability of the appeal.

Order

For these reasons it is decided that:

The appeal is dismissed.