9. Remittal to the department of first instance
9.5. Requests for or against remittal
This section has been updated to reflect case law and legislative changes up to 31 December 2023. For the previous version of this section please refer to the "Case Law of the Boards of Appeal", 10th edition (PDF). |
Under Art. 11 RPBA 2020, parties need not request remittal since the boards have discretion to remit a case and can do so without any such request (T 78/17; see also T 1805/14).
In many cases, the parties explicitly requested remittal to the department of first instance; see for example the ex parte cases T 1754/15, T 1966/16 and T 2519/17. Similarly, in the inter partes cases T 240/16, T 1376/17, T 2908/18, T 323/18 and T 395/18, the requests made by both parties were taken into account.
In T 1964/17 the complete absence of any analysis of the grounds for opposition of lack of novelty and lack of inventive step in the decision under appeal and the requests for remittal made by both parties were considered special reasons within the meaning of Art. 11 RPBA 2020.
In T 194/17 the board noted that the substantial procedural violation could in principle be a sufficient reason for setting aside the contested decision and remitting the case to the opposition division. However, the appellant had requested that the case not be remitted to the opposition division and that the board itself decide on it. In view of the principle of procedural economy, the length of the opposition (appeal) proceedings to date, the already advanced age of the patent and the fact that the violation concerned dependent claims, the board granted the appellant's request.
In T 1655/20 the board remitted the case to the examining division for further prosecution despite the appellant's request that the board decide on all the outstanding issues. In the case in hand the examining division had dismissed the main request only on the ground of lack of novelty and so without assessing inventive step. In addition, the first auxiliary request filed with the appeal had been modified and so differed from the first auxiliary request considered in the decision under appeal. The board deemed these circumstances to amount to special reasons justifying remittal of the case within the meaning of Art. 11 RPBA 2020. See also T 97/14 and T 568/17.
- T 884/22
Catchword:
Zu einem Antrag auf Zurückverweisung zur weiteren Prüfung von erstinstanzlich nicht behandelten Hilfsanträgen, Gründe 4.1 und 4.2
- T 1731/19
Catchword:
There is no right of the parties to choose in which form the Board of Appeal should exercise its competences under Article 111(1) EPC. The Board is entitled to decide on the issue of admittance of auxiliary requests without being bound to the respondent's request for prioritisation of the request for remittal. (Reasons, points 8.2 to 8.4)
- 2023 compilation “Abstracts of decisions”