7.2.1 No absolute right to have issue decided on at two instances

It is the boards' settled case law that parties do not have a fundamental right to have their case examined at two levels of jurisdiction. Accordingly, they have no absolute right to have each and every matter examined at two instances; Art. 111(1), second sentence, EPC leaves it instead to the board's discretion to decide on an appeal either by exercising any power conferred on the department of first instance or by remitting the case to that department (R 9/10, T 83/97, T 133/87, T 557/94, T 402/01 of 21 February 2005, T 399/04, T 1252/05, T 1363/10). In choosing what to do, the board must consider the circumstances of the individual case, also bearing in mind other factors such as the need for procedural economy (T 392/89 of 3 July 1990, T 1376/07, T 1253/09, T 2266/13). It is well-recognised that any party should, where possible, be given the opportunity to have two readings of the important elements of a case (T 1084/03, T 1907/06, T 286/09).

The primary function of an appeal is to consider whether the decision issued by the first-instance department was correct. Hence, a case is normally remitted if essential questions regarding the patentability of the claimed subject-matter have not yet been examined and decided on by the department of first instance (see e. g. T 1026/02, T 2023/07, T 1444/13). However, the board may, in the interests of procedural economy, decide the case even if a decisive issue has not been dealt with by the department of first instance (T 942/07, T 1376/07). This is the case even if as a consequence the patent is revoked for the first time by the board of appeal (see e.g. T 557/94; G 1/97, OJ 2000, 322; T 839/05).

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