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II.C.1. Introduction
Under Art. 82 EPC, the European patent application may relate to one invention only or to a group of inventions so linked as to form a single general inventive concept. R. 44 EPC (R. 30 EPC 1973) gives an interpretation of the concept of unity of invention where a group of inventions is claimed. This rule was amended by decision of the Administrative Council of the European Patent Organisation dated 7.12.1990 (OJ 1991, 4), which entered into force on 1.6.91, but the principles set out by board of appeal case law relating to R. 30 EPC 1973 as in force before 1.6.91 can still be applied. When the EPC was revised in 2000, R. 30(1) EPC 1973 was streamlined and its wording aligned with the style of the EPC 2000. Art. 82 EPC 1973 remained unchanged.
Under the EPC 1973, the boards of appeal were responsible for judging unity of invention when they decided on a protest made by an applicant against an additional fee charged by the EPO as ISA or IPEA (see Art. 154(3) and 155(3) EPC 1973). Art. 154(3) and 155(3) EPC 1973 were deleted as part of the revision of the EPC. However, they remain applicable to PCT applications which were pending at the time of the entry into force of the EPC 2000. Whilst the jurisdiction of the boards of appeal has been taken away with regard to the PCT protest procedure, the boards of appeal continue to consider unity in the context of European applications.
Harmonisation of the definitions regarding the requirement of unity of invention in the PCT (R. 13 PCT) and the EPC (Art. 82 EPC in conjunction with R. 44 EPC) means that the criteria for unity of invention in both systems are the same. Decisions of the boards of appeal rendered in PCT cases are thus still of interest when considering unity in the context of European applications.