9.1.2 Article 11 RPBA

Under Art. 11 RPBA the board shall not remit a case to the department whose decision was appealed for further prosecution, unless special reasons present themselves for doing so. As a rule, fundamental deficiencies which are apparent in the proceedings before that department constitute such special reasons.

The RPBA 2020 entered into force on 1 January 2020 (Art. 24RPBA and Art. 25(1) RPBA). Art. 11 RPBA was completely revised and applies to any appeal pending on, or filed after, that date of entry into force.

According to the explanatory remarks on Art. 11 RPBA (Supplementary publication 2, OJ 2020), the aim of the new provision is to reduce the likelihood of a "ping-pong" effect between the boards and the departments of first instance and a consequent undue prolongation of the entire proceedings before the EPO. When exercising their discretion under Art. 111 EPC, the boards should take account of this aim. Whether "special reasons" present themselves is to be decided on a case-by-case basis. The boards should not normally remit a case if they can decide all the issues without undue burden. Decisions T 1531/16, T 1089/17 and T 335/18 referred to these remarks.

In T 2154/15 it was further clarified that the RPBA could not deprive the boards of the discretion conferred on them by Art. 111(1) EPC, a point which was explicitly codified in the RPBA themselves, specifically in Art. 23 RPBA; the RPBA did not limit the powers of the boards established in Art. 111 EPC.

In T 350/17 the board noted that the concept of "special reasons" in Art. 11 RPBA should not be narrowly interpreted in a way which unduly restricts the discretion of the board to remit a case enshrined in Art. 111(1) EPC, as this would be contrary to the spirit of the Convention, which, in case of conflict, takes precedence (see Art. 23 RPBA).