9.6. No remittal to the department of first instance
In T 1089/17, in reply to the board's communication, which had introduced document D5 (a patent application filed by the appellant itself), the appellant submitted a procedural request that the case be remitted to the department of first instance. However, the board considered that it had to judge whether remittal under Art. 111(1) EPC was appropriate in view of the requirements of Art. 11 RPBA 2020. According to the explanatory remarks on Art. 11 RPBA 2020, the aim of the new provision was to reduce the likelihood of a "ping-pong" effect between the boards of appeal and the departments of first instance and a consequent undue prolongation of the entire proceedings before the EPO. Hence, a board should normally not remit a case if it could decide on all the issues without undue burden.
In T 1803/14 the board found that all relevant facts had been presented and the case was ready for decision. On the appellant's argument that remittal to the department of first instance was the only appropriate and fair outcome, the board noted that it was established case law that Art. 111(1) EPC did not imply an absolute right to have an issue decided on at two instances. In the case in hand, fairness of the proceedings had been guaranteed in that the board had raised its objections twice, at points in time which had given the appellant the opportunity to consider them and respond accordingly.
In T 1538/17 the appellant argued that it was appropriate to remit the case for further prosecution to the examining division, as the board had raised a fresh clarity objection at the oral proceedings and there were different opinions on how to read the claim when assessing inventive step. The board stated that the new clarity objection was directly related to its and the appellant's diverging views on the interpretation of claim 1. This divergence had to be resolved before the examining division's decision refusing the then first auxiliary request (which essentially corresponded to the main request filed on appeal) for lack of inventive step could be reviewed. The board therefore considered it appropriate to deal with the clarity objection in the appeal proceedings.