7.6.5 Fresh case

See also IV.E.7.4.2 "Violation of right to be heard" above

According to T 83/97 it is not mandatory for the appellate instance to remit every time a fresh case is raised before it, i.e. the right to two instances might not in each and every procedural situation be an absolute right of the parties concerned. (In fact, the matter was remitted as the board found that it would have been a violation of Art. 113 EPC 1973 to have given a final decision on all outstanding substantive matters against the requests of the parties, who had had no advance warning of such a procedural possibility, and in view of the long-standing practice of the boards of appeal).

In T 1007/05 new documents had been introduced into the proceedings and discussed. Under these circumstances the board held that it would only be reasonable to remit a case which had been extensively discussed if exceptional circumstances justified this action, for instance if the introduction of documents into the proceedings had created an entirely new situation. See also T 1864/09.

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