T 0087/88 (Further search fee) of 29.11.1991
- European Case Law Identifier
- ECLI:EP:BA:1991:T008788.19911129
- Date of decision
- 29 November 1991
- Case number
- T 0087/88
- Petition for review of
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- Application number
- 85103050.2
- Language of proceedings
- German
- Distribution
- Published in the EPO's Official Journal (A)
- Download
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- Other decisions for this case
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- Abstracts for this decision
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- Application title
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- Applicant name
- Digmesa
- Opponent name
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- Board
- 3.2.01
- Headnote
1. The legal consequence of non-payment of a further search fee (Rule 46(1) EPC) for a subject-matter in a European patent application cannot be considered as the abandonment of that subject-matter in that application (differing view: decision T 178/84, OJ EPO 1989, 157).
2. Where no search report is drawn up for the subject-matter concerned owing to non-payment of a further search fee and an amendment is made pursuant to Rule 86(2) EPC, an Examining Division is obliged to examine the unity (Article 82 EPC) of the invention claimed in the documents as originally filed only insofar as amended claims relating to that subject-matter are filed rendering an additional search necessary.
- Relevant legal provisions
- European Patent Convention Art 106(1) 1973European Patent Convention Art 113(1) 1973European Patent Convention Art 123(2) 1973European Patent Convention Art 17 1973European Patent Convention Art 76 1973European Patent Convention Art 82 1973European Patent Convention Art 97(1) 1973European Patent Convention R 30 1973European Patent Convention R 46(1) 1973European Patent Convention R 67 1973European Patent Convention R 68(2) 1973Patent Cooperation Treaty Art 17(3)(a)
- Keywords
- Lack of unity objected to during search
Search Division's communication not an appealable decision
Review carried out by Examining Division when further search fee not paid and new claims filed
Non-payment of further search fee not abandonment
Reimbursement of fee for appeal refused
Remission to Examining Division (yes)
Substantial procedural violation (no) - Catchword
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- Cited cases
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ORDER
For these reasons it is decided that:
1. The contested decision is set aside.
2. The case is remitted to the Examining Division for further prosecution.
3. The request for reimbursement of the fee for appeal is rejected.