Requests for refunds should be handled promptly. If the examiner concludes that a request for refund should not be granted, an interlocutory decision to that effect should be issued at the earliest opportunity, subject to the requirements of Art. 113(1), and the issuing of the decision should not normally be left until the final decision on the application. Of course, if the stage in the procedure at which the examiner is in a position to issue the decision on the refund coincides with the issuing of either a Rule 71(3) communication or a decision refusing the application, then in the former case the interlocutory decision can be issued with the Rule 71(3) communication, and in the latter case the decision on the refund can be included in the decision refusing the application. An interlocutory decision issued on this matter will allow separate appeal under Art. 106(2).
Moreover, it is essential to bear in mind that the review under Rule 64(2) is restricted to a reconsideration of the validity of that original finding under the circumstances existing at the time the Rule 64(1) invitation was sent, taking into account only the prior art which was available at that time. For more details on the assessment of unity of invention see F-V.
The issue of refunds of additional international search fees paid to the EPO acting as ISA in response to an invitation under Art. 17(3)(a) PCT, however, does not arise in the European phase, because these fees were paid in the international phase, which is closed by this stage of the procedure. The applicant may contest the payment of additional international search fees to the EPO acting as ISA by paying these under protest according to Rule 40.2(c) PCT. However, this must be done in the international phase (see also the Decision of the President of the EPO dated 24 March 2010, OJ EPO 2010, 320 and the Notice from the EPO dated 24 March 2010, OJ EPO 2010, 322).