Notice from the European Patent Office dated 26 August 1992 concerning the protest procedure under the PCT [lack of unity]
This Notice is issued in connection with the decision of the President of the EPO of 25 August 1992 concerning the protest procedure under the PCT (see above).
1. In accordance with Rule 104a(3) EPC1, the EPO will in its capacity as International Searching Authority or International Preliminary Examining Authority as of 1 October 1992 make use of the possibility provided for in Rules 40.2(e) and 68.3(e) PCT:
Where additional fees have been paid under protest, a review panel of the EPO will review whether the invitation to pay such fees was justified. The review panel will consist of three members: the Head of the Directorate from which the invitation was issued, an examiner with special expertise of unity of invention and, normally, the examiner who issued the invitation.
2. The result of the review will be notified to the applicant on Form PCT/ISA/212 or PCT/IPEA/420. This result will fall into one of the following categories:
(a) The review panel finds that the invitation was not justified and allows the protest: the additional fee(s) paid by the applicant are refunded;
(b) The review panel finds that the invitation was entirely justified: it will inform the applicant accordingly and invite him to pay a fee for the examination of the protest by the Board of Appeal ("protest fee"), if he wishes the protest to be referred for decision to the Board of Appeal;
(c) The review panel finds that the invitation was justified only in part: the corresponding additional fee(s) paid by the applicant are refunded; the applicant will be invited to pay the protest fee if he wishes the protest to be referred for decision to the Board of Appeal to the extent it was not allowed.
3. The review panels will normally issue their conclusion on a protest within a period of about six weeks from the date of receipt of the protest.
The protest fee has been fixed at DM 2 000 (Article 2, item 21, of the Rules relating to Fees).2
The protest fee must be paid within a time limit of one month from the date of the notification of the result of the review. If the protest fee is not so paid, the protest will be considered withdrawn.
4. If the protest fee is paid in due time, the protest will be referred to the Board of Appeal for decision.
(a) If the Board of Appeal finds that the protest was entirely justified, the additional fee(s) and the protest fee will be refunded;
(b) If the Board of Appeal finds that the protest was justified only in part, the corresponding additional fee(s) will be refunded, but not the protest fee.
5. The new protest procedure will apply to any protest relating to an invitation to pay additional fees issued as of 1 October1992.