3.3. Assessment of lack of unity in examination proceedings

The requirement of unity under Art. 82 EPC has to be satisfied not only by the patent application as filed but also at later stages of the patent granting procedure, i.e. before the examining division, up until grant of the patent. R. 64(2) EPC (R. 46(2) EPC 1973) refers to the possibility that the examining division might disagree with the search division concerning lack of unity and that the examining division's opinion is decisive in that the latter may order the refund of any further search fee at the applicant's request. It lies within the discretion of the examining division to decide that a patent application lacks unity of invention within the meaning of Art. 82 EPC, even if the search division did not raise a similar objection under R. 64(1) EPC (R. 46(1) EPC 1973) (T 178/84, OJ 1989, 157).

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