If not all of the claimed inventions have been searched, in accordance with G 2/92 the applicant must restrict the claims to one of the searched inventions. If however in reply to the search opinion the applicant then restricts the claims to one of the originally claimed inventions which has not been searched, the examiner will write a first communication repeating the lack-of-unity objection raised in the search opinion. Any arguments of the applicant should be duly considered and dealt with in the communication.
If the application is restricted to an unsearched but originally claimed invention, it can be refused under Rule 64 in line with G 2/92 (subject to the applicant's rights under Art. 113(1) and Art. 116(1).
Rule 137(5) cannot be invoked. It does not apply when the applicant has not paid the search fee in respect of a non-unitary invention relating to the originally filed claims.
If the application is a Euro-PCT application (see also H‑II, 7.4) the examiner should, depending on the case:
Date retrieved: 02 November 2015
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EPC Implementing Rules
EPO Guidelines - B Search
EPO Guidelines - E General Procedural Matters
EPO Guidelines - F The European Patent Application
EPO Guidelines - H Amendments and Corrections
Offical Journal of the EPO
XOJ EPO 2014, A70 - Notice from the European Patent Office dated 10 June 2014 concerning amended Rules 164 and 135 EPC