7.6.7 Circumstances to be taken into account

In T 265/05, the board explained that, when exercising its discretion under Art. 111(1) EPC 1973 either to decide or to remit the case, the board should take account of its particular circumstances and the parties' wishes (here the parties requested the board to decide the case). Given that the opposition division would have had to carry out any further examination of its own motion without the participation of the respondents, the only compelling reason the board could see for not allowing the request immediately itself would be a situation of prima facie lack of patentability based on the available information, or a situation of fundamental uncertainty because of lack of information. As this was not the case, the board chose to exercise its discretion under Art. 111(1) EPC 1973 to decide the case itself.

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