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Guide for applicants, Part 2: PCT procedure before the EPO (Euro-PCT Guide)

Lack of unity 
Where the Euro-PCT application does not meet the requirement of unity of invention, the procedure laid down in Rule 164 EPC applies upon entry into the European phase.
As from 1 November 2014 a completely revised procedure under Rule 164 EPC will apply (see point 654). The amended text of the rule has been published in the Official Journal, and more information on the revised procedure will be provided in the first half of 2014.
Procedure under Rule 164 EPC until 1 November 2014
In respect of a further invention contained in the Euro-PCT application which was not searched by the EPO in the international phase, a search will be performed only if a divisional application is filed. This means that the opportunity to have multiple inventions searched within the framework of a single Euro-PCT application is limited to the international phase of the application.
The EPO will not examine a Euro-PCT application if it has not itself performed a search in respect of the invention for which protection is sought. It follows that the examination of a Euro-PCT application in the European phase is conditional on the availability of the results of:
either an international search carried out by the EPO as ISA/SISA in respect of the invention for which examination is requested;
or a supplementary European search carried out by the EPO as designated/elected Office in respect of the invention for which examination is requested.
No supplementary search performed: EPO was ISA
Upon entry into the European phase the applicant must choose one invention from those searched during the international phase by the EPO as ISA/SISA to form the basis of the examination. If this requirement is not met, the applicant will be invited by the examining division to indicate which invention he wishes to pursue.
Rule 164 EPC provides the applicant with an opportunity to pay upon invitation, within a two-month period, a search fee for any invention which has not been searched by the EPO in the international phase but which the applicant claims upon expiry of the time limit set in the communication under Rules 161 and 162 EPC. This opportunity is available both where a supplementary European search is to be carried out (the EPO was not the (S)ISA) and where the supplementary European search is dispensed with (the EPO acted as (S)ISA). The inventions for which a search fee is paid will be searched by the EPO. The search will not be based on any amendments filed in response to an invitation to pay search fees.
If the applicant uses automatic debiting, all search fees to be paid under Rule 164 EPC will be automatically debited on the last day of the two-month period set in the invitation. Therefore, if the applicant does not wish to pay any or some of the fees, he must notify the EPO accordingly.
Point 3(b) ADD
The search fees must be paid within the non-extendable two-month time limit set in the invitation. This time limit is excluded from further processing, but re-establishment of rights may be requested.
If the applicant disagrees with the finding of lack of unity made by the search division or the examining division, he may request the examining division to review this finding and to refund the search fees paid.
An invention that has not been searched by the EPO cannot be prosecuted in examination. Therefore, if the applicant does not take the opportunity to pay search fees under Rule 164 EPC, he will be requested by the examining division to delete any unsearched subject-matter.