4.3.13 No right to a further hearing at first instance

In R 9/10 the Enlarged Board held that there is no right to a remittal, only a discretion which may or may not be exercised in a party's favour under Art. 111(1) EPC and which is the subject of considerable case-law. If there is no right to a remittal, there is no right to a further hearing before the first instance. See also R 12/09 of 15 January 2010, R 2/16, R 7/16.

In R 7/16 the board of appeal found that the decision of the opposition division presented a fundamental deficiency, but decided not to remit the case to the opposition division, exercising its discretion under Art. 11 RPBA 2007. The petition was based upon an alleged insufficiency of reasoning in the written decision. The Enlarged Board commented that a detailed discussion of the substantive issues before a decision on the remittal would have rendered any remittal pointless since the first instance would have been bound by the considerations of the board of appeal or could have expected that its decision would be reversed if it was not in line with the considerations of the board of appeal. The refusal of a remittal cannot per se be a ground for allowing a petition.

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