7.8. Remittal for adaptation of the description

The boards have remitted several cases to the department of first instance for adaptation of the description to amended claims.

For reasons of procedural economy, such a remittal to bring the description into line with amended claims – albeit permissible under Art. 111(1) EPC 1973 – should be avoided wherever possible (T 977/94) but may be necessary in certain circumstances. In T 1149/97, for instance, although the appellant had also submitted an amended description at the oral proceedings, the board thought it expedient to use its discretion under Article 111(1) EPC 1973 to remit the case to the department of first instance so it could investigate how to adapt the description and the drawings to ensure they were fully consistent with the now much narrower subject-matter in the amended claim with the requisite care.

In T 985/11 the description as adapted before the opposition division related to subject-matter which was no longer claimed and therefore needed to be further adapted. The board decided against continuing the appeal proceedings in writing, for reasons of procedural economy. The additional delay caused by a remittal seemed likely to be fairly short, since the wording of the claims was finalised by the decision, and the proceedings after remittal will thus be confined to adapting the description. As the board was taking a decision on the allowable version of the claims, procedural economy and legal certainty were also served.

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