In J 3/09 the Legal Board of Appeal rejected the appellant's request for a refund of the claims fee for claims 16-68 and noted that the legal basis for payment of those claims was R. 110(1) EPC 1973. It added that fees, once validly paid, were not refundable unless provision to the contrary was made. The appellant had not relied on any specific provision of the EPC in its support.
In response to the appellant's argument that it was inevitable that the subject matter of the unsearched claims could not be prosecuted in the application, and had therefore to be considered as abandoned, the board noted inter alia that in the frequent case of an a posteriori objection of non-unity, even if justified, the claims could usefully serve as a basis for later limiting the claimed subject-matter to a more specifically defined but now unitary and searched invention. Whilst the extent to which this was possible depended on the circumstances of the individual case, it remained the position that the payment of claims fees for claims exceeding the number of ten could have a useful purpose on its own independently of the question whether all the claims concerned unitary subject-matter.