7.5.5 Remittal to department of first instance ordered

In T 611/90 (OJ 1993, 50), the appellant had first alleged public prior use, on the basis of new evidence, in its statement of grounds of appeal. For the board, this amounted to a fresh case which had to be remitted. It pointed out that, in such circumstances, the interest of the public and the parties in having the proceedings speedily concluded could be overridden by the requirement that appeal proceedings should not become a mere continuation of first-instance proceedings. In T 147/95, the submission of a new document in support of a ground of opposition had introduced a completely new line of argument that potentially prejudiced maintenance of the patent as it then stood and so the case had to be remitted to the opposition division.

Citing T 402/01 of 21 February 2005, the board in T 1600/06 found that even if the patent proprietor has no automatic right of remittal after the citation of a new document, the patent proprietor's right to be heard in accordance with Art. 113(1) EPC may require remittal when, as in the case before it, the new document alters the legal and factual framework of the case significantly and a "fresh case" results.

In T 736/01 the board stated that since it was not the function of an appeal to examine and decide upon a fresh case resulting from the newly submitted and admitted prior art, it would remit the case to the opposition division.

In T 361/03 a document submitted by the appellant (opponent) one month before the oral proceedings fundamentally altered the factual framework of the case under appeal. The board admitted the document but held remittal justified. This had the twofold purpose of allowing this fresh case to be examined at two levels of jurisdiction and of giving the respondent a reasonable opportunity to consider possible fallback amendments and possible evidence that could be produced in defence of such amended requests.

The board in T 125/93 admitted a highly relevant document that had been filed shortly before the oral proceedings, which had the concomitant effect of altering the factual framework of the case under appeal compared with that upon which the decision under appeal had been based. The board referred the case back to the opposition division for further prosecution.

In T 1469/07 the appellant and interveners observed that it was in the interest of the public and of legal certainty to have a final decision as quickly as possible. However, the board noted that the fresh case was caused not by the respondent but by the new evidence filed by the appellant and the interveners. Accordingly, in the exercise of its discretion, the board considered that the case against the patent had altered to such an extent that the respondent had a legitimate reason to have its full case considered at two instances (see also T 78/11).

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