Since the main purpose of appeal proceedings is to give a losing party an opportunity to challenge a decision on its merits, remittal in accordance with Art. 111(1) EPC has normally been considered by the boards where essential questions regarding the patentability of the claimed subject-matter have not yet been examined and decided on by the department of first instance. This applies to both ex parte and inter partes proceedings. In particular, remittal is considered by the boards in cases where a first-instance department has issued a decision against a party based solely on one particular issue which was decisive for the case, but left other essential issues outstanding. This current practice is in keeping with the primary object of appeal proceedings of reviewing the decision under appeal in a judicial manner (Art. 12(2) RPBA 2020).
In several decisions, the boards have pointed out that Art. 11 RPBA 2020 is to be read in conjunction with Art. 12(2) RPBA 2020, which provides that the primary object of the appeal proceedings is to review the decision under appeal in a judicial manner (T 731/17). This principle would not be respected if the board were to conduct a complete examination of the application or patent (T 1966/16; see also T 547/14, T 275/15, T 1077/17, T 1508/17, T 2519/17 and T 3218/19).
In the cases reported in the following sections, the boards found that there were special reasons justifying remittal to the department of first instance.