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Case Law of the Boards of Appeal

 
 
g)
Identical decision after remittal for further prosecution 

In T 740/93 the case had been sent back to the department of first instance because of a procedural violation (incorrect composition of the opposition division). Because of the remittal with the order for further prosecution of the opposition, the first decision became nothing more than a communication and the first statement of grounds of appeal therefore had to be considered as a response to this communication. The new opposition division rendered a decision which was nearly identical to the first one. Although the decision under appeal contained a reasoning as to why the subject-matter of the patent in suit was considered to lack an inventive step and referred to points of dispute raised in the proceedings up to the first decision, it did not contain any direct reference to the important issues of dispute raised in the first statement of grounds of appeal and failed to comment upon the other issues of dispute. It thus did not meet the requirements of R. 68(2) EPC 1973.