The EPO has just opened an online consultation about its controversial two year deadline for filing divisional applications.  It is an open consultation and all interested parties are invited to participate.

Since 2010, under Rule 36 EPC, the deadline for filing any divisional applications in a particular family has been two years from the first communication from the Examining Division (or two years from the first unity of invention objection, if such an objection is raised) or the day before the date of grant of the parent application, if this is sooner. 

According to the EPO website, the 2010 amendment to Rule 36 "sought to achieve an optimum balance between the legitimate interest of applicants in obtaining full protection for their inventions and the need to establish a clear cut-off point providing third parties with the necessary legal certainty".

However, the change was met with considerable criticism and, since the amended Rule entered into force, the overall number of divisional applications filed has actually increased.

The EPO has responded by opening a consultation on Rule 36 to assess its impact and effectiveness.

The consultation invites responses to the following questions:

  1. How has the introduction of the time limits for filing divisional applications affected you?
  2. What is your overall assessment of current Rule 36 EPC?
  3. What are, in your opinion, the most positive aspects of the current regime? Would it be possible to reinforce them? How?
  4. Are there aspects of the Rule you think should be reconsidered? For example, should the time limits be extended from 24 to 48 or 60 months?
  5. Do you think that further amendment of the Rule would help to optimise it? If so, could you please outline your preferred option?
  6. What kind of action other than legal measures (e.g. administrative or financial ones) do you think the EPO could take that would effectively address the issue of divisionals filed merely in order to prolong pendency?

The consultation is open until 5 April 2013.