10.2. Binding effect of interlocutory referral decision on subsequent proceedings

The EPC is silent on this issue. Art. 111(2) EPC provides that if a board of appeal remits a case to the department of the EPO whose decision was appealed, that department is bound by the ratio decidendi of the board of appeal, in so far as the facts are the same; however, Art. 111(2) EPC is not applicable to the relationship between an earlier interlocutory decision of a board and the subsequent proceedings before the same board. In T 116/18 of 28 July 2023 date: 2023-07-28, the board decided that it was bound by its earlier decision in the same case referring a question to the Enlarged Board. The scope of the subsequent proceedings was therefore limited to the application of the Enlarged Board's decision to the unresolved issue that gave rise to the referral and to any other issues not dealt with in that decision.