In case you had doubts, Wunderwaffe Article 12(4) RPBA can also be used against a request for reimbursement of search fees.
*** Translation of the German original ***
[4.1] Pursuant to R 64(2) a request for reimbursement of a further search fee has to be filed during the examination of the European patent application.
According to the minutes of the oral proceedings held on January 28, 2009, before the Examining Division (ED), this has not been done. Point 5 of the minutes states: “After a short deliberation the Chairman asked whether the applicant intended to maintain the request for reimbursement of the additional search fees that had been paid …. The representative answered in the negative.”
Thus the ED has correctly stated in its decision that there was no corresponding request on file.
[4.2] Although the Board, pursuant to Article 12(4) RPBA, shall take into account everything presented [by the applicant] together with the appeal and the statement of grounds of appeal, the same provision entitles the Board to hold inadmissible facts, evidence or requests which could have been presented or were not admitted in the first instance proceedings. This is all the more true for requests that have been withdrawn during the first instance proceedings (cf. T 361/08 ).
The admission of a request for reimbursement of further search fees that had been paid would lead to the Board dealing with the corresponding questions for the first time in appeal proceedings or remitting the case to the first instance (A 111(1)). However, admitting the present request, which had at first been withdrawn, at such a late stage would go against the duty of procedural economy in appeal proceedings. Moreover, the appellant has not given any reasons justifying its request.
The question of whether the request before the Board was filed in due time within the meaning of R 64(2) may remain unanswered.
Thus the Board, duly exercising its discretion, does not admit the request for reimbursement of further search fees that had been paid into the proceedings.
Should you wish to download the whole decision (in German), just click here.
The file wrapper can be found here.