7.3.5 Commercial uncertainty

In T 229/90 the board stated that continuing commercial uncertainty cannot be in the general public interest. For this reason, the board must always balance this general public interest against the fundamental legal requirement that it should act only within its appellate role, as provided for by the EPC, and not step into the shoes of the department of first instance.

The interest of the public and the parties in having the proceedings brought to a swift close and the need to prevent continued economic uncertainty can generally be considered good reasons for not remitting a case (T 1376/07).

In T 987/13 the appellant argued that remitting the case to the examining division would prolong the proceedings, which would go against its economic interests. The board stated that the examining division might deem it necessary to reconsider the choice of the closest prior art in view of the claim amendments or even to carry out an additional search. Therefore, the appellant’s economic interests were held to be of secondary importance. The board also noted that the examination proceedings could be accelerated at the applicant’s request.

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