T 0675/22 - Filing a divisional application during the break

Key points

• This case will probably be known for the representative losing his composure, but another question: can you file a divisional application on the day of the oral proceedings, and if yes, between the end of the oral proceedings and midnight? The "whole day" principle of the EPO speaks in favor of the latter approach, but that is no certainty as yet. 
• On a related note, under current R.126, can you file a divisional application on the date of the refusal decision issued in writing [*] (e.g. in case of receipt on the same date via the Mailbox) or only until the day before? (* - i.e. not the written reasons for a refusal decision pronounced during oral proceedings).
• "3.1 At the oral proceedings before the board, in particular during the discussion regarding the admittance of the auxiliary requests, the appellant's representative requested a break in order to file a divisional application. When asked for the legal basis of this rather unusual request, he lost his composure. He criticised the board for members for their "destructive approach", lack of an "open mind" and unwillingness to resolve the issues at hand. He complained that he had the impression that the board was in a "hurry" and asked the board whether the board members had another "appointment". He said that he felt himself as if he were in the "military", making the German "zum Kotzen" gesture with the index finger pointing towards his open mouth. He then grabbed his mobile phone to call his secretary to give instructions to file a divisional applications unless the board gave a break. The board warned the representative that this behaviour in the proceedings was totally disrespectful towards the members of the board and constituted a violation of Article 6 of the Code of Conduct of the Institute of Professional Representatives before the European Patent Office (Official Journal EPO, 2022, A61; "epi Code of Conduct")

3.2 After a break given for the board to deliberate on the admittance of the present auxiliary requests, the representative had regained his composure and stated that he had meanwhile filed a divisional application. The request for a break to file a divisional application was therefore moot.

• I guess divisional applications are more often filed the day before, without paying fees.

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

https://www.epo.org/en/boards-of-appeal/decisions/t220675eu1

2.5 Therefore, the board did not admit auxiliary requests 1 to 3 into the appeal proceedings (Article 13(2) RPBA 2020).

3. Procedural matters

3.1 At the oral proceedings before the board, in particular during the discussion regarding the admittance of the auxiliary requests, the appellant's representative requested a break in order to file a divisional application. When asked for the legal basis of this rather unusual request, he lost his composure. He criticised the board for members for their "destructive approach", lack of an "open mind" and unwillingness to resolve the issues at hand. He complained that he had the impression that the board was in a "hurry" and asked the board whether the board members had another "appointment". He said that he felt himself as if he were in the "military", making the German "zum Kotzen" gesture with the index finger pointing towards his open mouth. He then grabbed his mobile phone to call his secretary to give instructions to file a divisional applications unless the board gave a break. The board warned the representative that this behaviour in the proceedings was totally disrespectful towards the members of the board and constituted a violation of Article 6 of the Code of Conduct of the Institute of Professional Representatives before the European Patent Office (Official Journal EPO, 2022, A61; "epi Code of Conduct").

3.2 After a break given for the board to deliberate on the admittance of the present auxiliary requests, the representative had regained his composure and stated that he had meanwhile filed a divisional application. The request for a break to file a divisional application was therefore moot.

Order

For these reasons it is decided that:

The appeal is dismissed.