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Case Law of the Boards of Appeal

 
 
7.4.1 Legal basis

A board shall remit a case to the department of first instance if fundamental deficiencies are apparent in the first instance proceedings, unless special reasons present themselves for doing otherwise (Art. 11 RPBA).

Remittal to the department of first instance is therefore normally also ordered where a substantial procedural violation occurred in the first instance proceedings (T 125/91, T 135/96 and T 1065/99), even where the violation affects only one of two opponents (T 125/91).

In cases in which no fundamental deficiency is apparent, the board in T 671/08 concluded that remittal of the case to the department of first instance is a discretionary issue which lies within the sole competence of the board.