As of 1 April 2010, divisional applications on the applicant's own initiative (so-called voluntary divisional applications) can only be filed within a period of two years from the first communication by the EPO Examining Division in respect of the first parent application.
Divisional applications filed as a reaction to a non-unity objection (so-called mandatory divisional applications) will also have to be filed within 24 months from the communication in which the relevant objection is raised by the Examining Division for the first time.
According to the transitional provisions, if the time limits provided for in amended Rule 36(1) EPC have expired before 1 April 2010, a divisional application may still be filed within six months of that date. If they are still running on 1 April 2010, they will continue to do so for no less than six months.
In case the time limit to file a divisional application is missed, further processing is not allowed. The only legal remedy to file a divisional application after the time limit is missed will be re-establishment of rights in which case the applicant will have to show why he or she was unable to observe a time limit vis-à-vis the European Patent Office, in spite of all due care required by the circumstances having been taken.
