The violation of the principle of the right to be heard is considered as a fundamental deficiency of first instance proceedings and remittal is often ordered accordingly (T 125/91, T 808/94, T 1399/04). The board in T 1399/04 pointed out that it is, however, also acknowledged that there is no absolute right for a party to have every aspect of a case examined in two instances (referring to T 133/87). Other criteria, e.g. the general interest that proceedings are brought to a close within an appropriate period of time, have also to be taken into account. See also e.g. T 594/00 and T 343/01.
Where a remittal by a board of appeal for further prosecution on the basis of new evidence was immediately, i.e. without an intervening communication announcing the resumption of the proceedings, followed by the revocation of the patent, then the party had had no opportunity to present comments. It was necessary that the parties be expressly asked whether or not they wished to present their comments or in the case where the parties had already made detailed submissions during the preceding appeal proceedings, whether or not these submissions should be regarded as complete. The board in T 1425/05 pointed out that these principles had been followed in decisions T 769/91, T 120/96, T 679/97, T 742/04 for opposition proceedings and in decisions T 922/02 and T 1494/05 for examination proceedings.
In T 1077/06, the board could not identify a legal basis in the EPC from which it could be concluded that a party, appealing against a decision of a department of first instance, which had been taken in violation of its right to be heard, had retrospectively abandoned its right to be heard before the department of first instance when it did not appear at oral proceedings before the department of second instance. Since the appellant whose right to be heard had been violated requested the remittal of the case to the department of first instance, in the specific situation of the case at issue, this request took precedence over apprehensions regarding an undue delay of the procedure (see also T 594/00).
In T 1505/06 the board was faced with reviewing a decision of the opposition division on an issue in respect of which it did not know the reasons for the decision. No review of the decision of the opposition division in this respect was therefore possible and the board was unable to ascertain whether the right to be heard of the proprietor/appellant had been respected. It therefore had no choice but to remit the case to the opposition division for further prosecution pursuant to Art. 111(1) EPC 1973 so that the proprietor had a renewed opportunity to present its case at oral proceedings.