The earlier application must be pending at the time the divisional is filed, i.e. must not have been granted, lapsed, or withdrawn. A mandatory divisional must be filed within 24 months of any communication in which the examining division raises a non-unity objection according to Article 82 EPC in relation to the pending application, with the proviso that the finding of lack of unity is raised for the first time in the communication.
The amended versions of Rule 36 EPC only apply to divisionals filed on or after 1 April 2010. Where the 24-month time limits in the amended Rule 36 have expired before 1 April 2010, a divisional application may still be filed until 1 October 2010.
This is therefore an important date for any applicants who wish to file divisionals of their pending application and who received a first communication from the examining division, or a non-unity objection, related to that application prior to 1 April 2008.
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