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Case Law of the Boards of Appeal

 
 
7.5. Introduction of new arguments and amendment of the description

If no new documents are introduced, but merely arguments presented from a different point of view, or if the claims are maintained on the basis of an auxiliary request which the department of first instance has already indicated that it would be prepared to accept, then the desideratum of keeping the procedure as short as possible requires that there should be no remittal (T 5/89, OJ 1992, 348; T 392/89 of 3.7.1990 and T 137/90). See also T 1210/05.

The board in T 1913/06 made it clear that a case should not be remitted to the department of first instance for consideration of submissions made at the oral proceedings which the board or the other party could not reasonably be expected to deal with without adjournment of the oral proceedings and which had not been admitted under Art. 13(3) RPBA). See also T 764/07.

Remittal to the department of first instance to bring the description into line with amended claims should be avoided if at all possible for reasons of procedural economy, and although Art. 111(1) EPC 1973 permits it (T 977/94). However, remittal in such circumstances may still be necessary; in T 1149/97, although the appellant had also submitted amendments to the description at the oral proceedings, the board considered it expedient to remit the case to the department of first instance for further prosecution in accordance with the discretion under Art. 111(1) EPC 1973. Adaptation of the description and the drawings to the more restricted subject-matter now claimed needed careful consideration so that full consistency with the amended claim was guaranteed.