Legal framework
Where the European search division considers that the application lacks unity of invention, it draws up a partial European search report for the invention first mentioned in the claims and invites the applicant to pay further search fees for the other inventions within two months. The European search report then covers only the inventions for which search fees have been paid: Rule 64(1) EPC.
Further processing is not available for all missed EPC time limits. In particular, Rule 135(2) EPC expressly excludes further processing for the period under Rule 64 EPC.
A European divisional application may be filed for any pending earlier European patent application under Rule 36(1) EPC. Under Article 76(1) EPC, the divisional may relate only to subject-matter not extending beyond the content of the earlier application as filed.
A European patent application may also claim priority from an earlier patent application for the same invention within 12 months from the filing date of the first application: Article 87(1) EPC.
Similarly, an international application may claim priority from an earlier application under Article 8 PCT, and the PCT priority period is 12 months.
Statement a)
Statement a) is false.
The invitation to pay one additional search fee was received in May 2025. Under Rule 64(1) EPC, the time limit for paying an additional search fee is two months. By 10 September 2025, that period has expired.
The applicant cannot remedy this by paying the additional search fee together with a further processing fee, because further processing is excluded for the Rule 64 EPC time limit under Rule 135(2) EPC.
Thus, paying the additional search fee for EP-A with a further processing fee is not a valid option.
Statement b)
Statement b) is true.
Failure to pay the additional search fee under Rule 64 EPC does not make the whole European patent application deemed withdrawn. It means that the other invention is not included in the European search report. If no additional search fee is paid, the applicant is treated as having elected to proceed in the parent application on the basis of the searched invention.
Since EP-A is still pending, the applicant may file a European divisional application under Rule 36(1) EPC. The divisional may be directed to the second invention, provided that the second invention is disclosed in EP-A as filed and the divisional does not add subject-matter contrary to Article 76(1) EPC.
Therefore, filing a European divisional application directed to the second invention is a valid option.
Statement c)
Statement c) is true.
EP-A was filed in November 2024 and did not claim priority. Therefore, for the second invention disclosed in EP-A, EP-A can be the first application for priority purposes.
On 10 September 2025, the 12-month priority period from any filing date in November 2024 has not yet expired. Under Article 87(1) EPC, the applicant may file a later European patent application claiming priority from EP-A for the same invention within 12 months from the filing date of EP-A.
Thus, filing EP-B directed to the second invention and claiming priority from EP-A is a valid option.
Statement d)
Statement d) is true.
The same reasoning applies to an international application. Under Article 8 PCT, an international application may contain a declaration claiming the priority of an earlier application. PCT guidance confirms that, under Article 8(2)(a) PCT and Article 4C(1) Paris Convention, the earlier application must fall within the 12-month period preceding the international filing date.
Since EP-A was filed in November 2024, the 12-month priority period is still open on 10 September 2025. Accordingly, filing PCT-B directed to the second invention and claiming priority from EP-A is a valid option.
Exam tip
When an additional search fee under Rule 64 EPC is not paid, do not confuse the consequences. The missed payment cannot be repaired by further processing, because Rule 135(2) EPC excludes it. But the application itself remains pending, so the applicant may still use other routes: a divisional application, or a new EP/PCT application claiming priority, provided the 12-month priority period is still open.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.