An applicant may pay an additional search fee under "protest". This means that at the time of payment of the additional fee(s) the applicant objects to the finding of lack of unity in a written reasoned statement filed with the EPO as ISA. Such objections may concern the finding of non-unity as such or the number of the required additional fees. The lodging of a protest does not delay the search itself.
For applications filed on or after 13 December 2007, the date of entry into force of the EPC 2000, aAccording to the one-stage protest procedure as set out in Rule 40.2 PCT applies. According to this procedure, the only body examining a protest before the EPO as ISA is a review panel consisting of three members: the head of a directorate, normally the head of the directorate by which the invitation to pay additional fees was issued, an examiner with special expertise in unity of invention and, normally, the examiner who issued the invitation.
Where additional fees are paid under protest and the protest fee is duly paid, the protest will be referred to the review panel for a decision in first and last resort. If the review panel finds that the protest was entirely justified, the additional fees and the protest fee will be refunded. If the review panel finds that the protest was justified only in part, the corresponding additional fees will be refunded, but not the protest fee. The findings of the review panel will be taken into account in establishing the ISR and WO-ISA. The procedure is set out in detail in the Notice from the EPO dated 24 March 2010.
OJ 2010, 322
Date retrieved: 02 November 2015
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EPC Implementing Rules
XR.158 EPC The European Patent Office as an International Searching Authority or International Preliminary Examining Authority