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.
According to the protest procedure as set out in Rule 40.2 PCT, the only body examining a protest before the EPO as ISA is a review panel consisting of three members, one of whom chairs the panel and another of whom is the examiner who was responsible for issuing the invitation to pay additional fees.
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 when establishing the ISR and WO-ISA.
Date retrieved: 30 December 2018
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EPC Implementing Rules
XR.158 EPC The European Patent Office as an International Searching Authority or International Preliminary Examining Authority