7.6.2 Function of appeal

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.

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