In T 1966/16 the board stated that the sole ground for the refusal set out in the decision under appeal, namely a lack of inventive step, was not justified. The board held that special reasons were apparent in the case in hand because the examining division had not taken an appealable decision on essential outstanding issues with respect to Art. 83, 84 and 123(2) EPC. As set out in Art. 12(2) RPBA 2020, the primary object of the appeal proceedings was to review the decision under appeal in a judicial manner. This principle would not be respected if the board were to conduct a complete examination of the application. Consequently, Art. 11 RPBA 2020 did not entail the board carrying out a full examination of the application for compliance with the requirements of Art. 83, 84 and 123(2) EPC, for which no decision at first instance existed yet (see also T 2519/17).
In T 731/17 the board noted that Art. 11 RPBA 2020 is to be read in conjunction with Art. 12(2) RPBA 2020, which provides that it is the primary object of the appeal proceedings to review the decision under appeal in a judicial manner. The board stated that inventive step over documents D1 to D4 had not yet been assessed in detail. Moreover, it might need to be investigated whether document D2 belonged to the state of the art under Art. 54(2) EPC at all. Not remitting the case to the examining division would require the board to perform these tasks in both first- and last-instance proceedings and to effectively replace the examining division rather than review the contested decision in a judicial manner (see also T 658/17).
In T 986/16 the board stated that, since the main purpose of the appeal proceedings was to give the losing party an opportunity to challenge the decision of the opposition division on its merits (see G 10/91, OJ 1993, 420), remittal in accordance with Art. 111(1) EPC had normally been considered by the boards in cases where the opposition division had issued a decision solely on one particular issue (e.g. novelty) and left other substantive issues (e.g. as regards inventive step) undecided.
In T 1627/17 sufficiency of disclosure was the only ground for opposition on which a decision had been taken. All the parties to the appeal proceedings had requested remittal of the case to the opposition division for consideration of the other grounds for opposition raised by the opponent in its notice of opposition (lack of novelty and lack of inventive step). The board stated that, although the EPC did not guarantee the parties an absolute right to have all the issues in the case considered at two instances, it was well recognised that any party could be given the opportunity to have two readings of the important elements of a case. The essential function of an appeal was to consider whether the decision issued by the first-instance department was correct. In the case in hand, the aforementioned facts, including the request made by both parties, were in the board's view special reasons within the meaning of Art. 11 RPBA 2020. See also T 516/18.
In T 2450/17, the contested decision was based solely on the grounds for opposition under Art. 100(b) and 100(c) EPC. Since the primary object of appeal proceedings was to review the decision of the department of first instance but the novelty and inventive-step objections raised against the patent had not been fully examined there, the board found that there were special reasons for remitting the case to the department of first instance for further prosecution, as requested by all the parties. Had the case not been remitted, the losing side would have had to accept a first yet final decision on key patentability requirements, without the option to appeal, solely because a decision had already been handed down on other patentability requirements, albeit one that ultimately did not stand up to legal scrutiny. See the similar cases T 731/17, T 1754/15 and T 1966/16.