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As indicated in B-II, 4.3.1, for certain international applications entering the European phase with an international search report, no supplementary European search is carried out. The following situations may then be distinguished during substantive examination:
If, during the international search, an objection of lack of unity has been raised and the applicant has not taken the opportunity to have the other invention(s) searched by paying additional search fees for them, but has taken the opportunity to amend the claims after receipt of the international search report (see E-VIII, 3.3.1) so that they are limited to the invention searched and has indicated that examination is to be carried out on these amended claims, the examiner proceeds on the basis of these claims.
If, during the international search, an objection of lack of unity has been raised and the applicant has neither taken the opportunity to have the other invention(s) searched by paying additional search fees for them, nor amended the claims so that they are limited to the invention searched, and the examiner agrees with the objection of the ISA (taking into account any comments on the issue of unity submitted by the applicant in his response to the WO-ISA or IPER, see E-VIII, 3.3.1), he will then proceed to issue a communication under Rule 71(1) and Rule 71(2), dealing exclusively with the subject-matter of the one and only invention which has been searched.
If the applicant has paid additional search fees during the international phase, he may determine that the application is to proceed on the basis of any of the searched inventions, the other(s) being deleted, if the examiner agrees with the objection of the ISA. Where the applicant has not yet taken that decision, the examiner will, at the beginning of substantive examination, invite him to do so.
If the claims to be examined relate to an invention which differs from any of the originally claimed inventions and which does not combine with these inventions to form a single inventive concept, an objection under Rule 137(5) should be raised in the first communication pursuant to Art. 94(3) and Rule 71(1) and Rule 71(2) (see also H-II, 6.2).
If the applicant has not paid additional search fees during the international phase and the examiner does not agree with the objection of the ISA (for example, because the applicant has convincingly argued in response to the WO-ISA or IPER, see E-VIII, 3.3.1, that the requirement of unity of invention is satisfied), an additional search will be performed (see B-II, 4.2(iii)) and the examination will be carried out on all claims.
In cases (i) to (iv), the applicant may file divisional applications for the inventions deleted to meet the objection of non-unity (see C-IX, 1, and A-IV, 1), provided that, when a divisional application is filed, the application being divided is still pending (see A-IV, 1.1.1.1) and at least one of the periods provided for under Rule 36(1)(a) and Rule 36(1)(b) has not yet expired (see A-IV, 1.1.1.2 and A-IV, 1.1.1.3).