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There is no absolute right to have an issue decided upon by two instances. According to T 83/97 it is not mandatory for the appellate instance to remit every time a fresh case is raised before it, i.e. the right to two instances might not in each and every procedural situation be an absolute right of the parties concerned. (In fact, the matter was remitted as the board found that it would have been a violation of Art. 113 EPC 1973 to have given a final decision on all outstanding substantive matters against the requests of the parties, who had had no advance warning of such a procedural possibility, and in view of the long-standing practice of the boards of appeal).
Similarly, in T 249/93 the board held that remittal lay within the discretion of the board. Where remittal might mean that a final decision was not reached until after the expiry of the patent, the board would be inclined to decide the issue itself, unless there were strong reasons for not doing so.
Nor does Art. 32 TRIPS limit the board's discretion concerning remittal. In T 557/94 the board held that Art. 32 TRIPS (which provides for the judicial review of any decision to revoke a patent) did not oblige the reviewing instance to remit the case to the department of first instance, where the department of first instance did not revoke the patent and the reviewing instance intended to deviate from the decision of the first instance. Art. 111 EPC 1973 empowered the board to decide on the merits of the case without restriction and it would be alien to at least the majority of legal systems in the EPC contracting states to limit the power of the reviewing instance in such a way that - dependent upon the "result" of the decision under attack - it would be bound to remit the case to the department of first instance. Nor could it be assumed that the states negotiating TRIPS intended the introduction of such a limitation.
In the interests of overall procedural economy and effectiveness, the board in T 473/98 (OJ 2001, 231) also found it entirely appropriate and desirable that an opposition division should include in the reasons for a revocation decision pursuant to Art. 102(1) EPC 1973 employing the standard decision formula, by way of obiter dicta, findings which could obviate a remittal in the event of the revocation being reversed on appeal. See also T 915/98. In T 275/99 the board stated that, from a purely procedural point of view, no objection could be made to the fact that the examining division had left open the issue of inventive step in the appealed decision, and the case was remitted.
Although both the appellant and the respondents wished the board to make a final decision rather than remit the case to the opposition division, the board in T 869/98 refused, pointing out that it is not normally the function of the appeal board to consider and decide upon questions which were raised for the first time during the appeal proceedings. As there had been no assessment of inventive step at all during the written appeal proceedings, the board exercised its discretion under Art. 111(1) EPC 1973 and referred the case back to the opposition division.
In T 887/98, on the other hand, the board held that remittal was not justified: the appellant (patent applicant) had indeed been able to put forward his arguments in proceedings at both first and second instance, and had been given plenty of time to study a document D2 before the oral proceedings. Furthermore, the examining division had found another document to be prejudicial to inventive step, so introducing D2 into the proceedings before it would not affect its decision. For these reasons, plus considerations of procedural economy, the board refused the appellant's request for remittal.
In T 265/05, the board explained that, when exercising its discretion under Art. 111(1) EPC 1973 either to decide or to remit the case, the board should take account of its particular circumstances and the parties' wishes (here the parties requested the board to decide the case). Given that the opposition division would have had to carry out any further examination of its own motion without the participation of the respondents, the only compelling reason the board could see for not allowing the request immediately itself would be a situation of prima facie lack of patentability based on the available information, or a situation of fundamental uncertainty because of lack of information. As this was not the case, the board chose to exercise its discretion under Art. 111(1) EPC 1973 to decide the case itself.