If not all of the claims claimed inventions have been searched, in accordance with G 2/92 the applicant will be required tomust restrict the claims to one of the searched inventions. If however in reply to the search opinion the applicant then restricts the claims to one of the originally claimed inventions which has not been searched, the examiner will write a first communication repeating the lack-of-unity objection raised in the search opinion. Any arguments of the applicant should be duly considered and dealt with in the communication.
If the application is restricted to an unsearched but originally claimed inventionsubject-matter, it can be refused under Art. 82 and Rule 64 in line with G 2/92 (subject to the applicant's rights under Art. 113(1) and Art. 116(1)).
Rule 137(5) cannot be invoked. It does not apply when the applicant has not paid the search fee in respect of a non-unitary invention relating to the originally filed claims.
If the application is a Euro-PCT application the examiner should object under Rule 164(2) to the restriction of the claims to an invention not searched (on grounds of lack of unity) by the EPO as (Supplementary) International Searching Authority or in the context of a supplementary search in the European phase (see B-II, 4.3.2, B-VII, 2.3 and E-VIII, 4.2). When objecting under Rule 164(2) the examiner must confirm the lack-of-unity objection raised in the search opinion.