b) No special reasons – remittal to department of first instance 

- Procedural delay

In T 21/09 the board shared the view of the board in decision T 48/00 that a delay of the final decision caused by the remittal was an insufficient reason not to order remittal. The fundamental right of an appellant to a fair hearing before the opposition division must outweigh any advantage that might accrue to the respondent by having the board of appeal deal fully with the case rather than remit it (T 914/98).

In T 48/00 the only reason advanced as to why remittal would not be appropriate was the respondent's argument that this would delay the final decision in the case and it would therefore be prejudiced by the continued existence of a patent it considered invalid. The board pointed out that the respondent did, however, have the opportunity to challenge the validity of the patent in national courts whereas, for the appellant, revocation as a result of opposition proceedings would represent a final loss of its rights in all the designated states.

- Infringement proceedings before national courts

Infringement proceedings before the German courts did not constitute a special reason in T 914/98, where the board held that the fundamental right of the appellants to a fair hearing before the opposition division had to outweigh any advantage that might accrue to the respondents by having the board deal fully with the case rather than remit it.

- Length of proceedings

In T 1077/06 the appellant whose right to be heard had been violated requested the remittal of the case to the department of first instance. In the specific situation of the case at issue, this request took precedence over apprehensions regarding an undue delay of the procedure (see also T 594/00).

In T 591/17 the board considered whether the age of the present application constituted a special reason because it took the examining division almost ten years to react to the appellant's letter, only a small part of which was due to the staying of examination proceedings. However, taking into account that the appellant did not once, between 2005 and 2015, even enquire about the progress of examination proceedings, and did not address the overall length of the proceedings in its grounds of appeal, the board decided that the age of the case did not constitute a special reason for not remitting the case.

In T 2092/13 the board stated that the overall length of the proceedings may constitute a special reason. However, the application was a divisional application, and this explained, at least in part, the length of the proceedings. In addition, this sole circumstance did not constitute, in the case in hand, a sufficient special reason for not considering the remittal of the case.

In T 1088/11 the board accepted that a remittal to the department of first instance would introduce considerable procedural delay, but this could not be regarded as one of the special reasons referred to in Art. 11 RPBA 2007. Where there are good grounds for supposing that the impugned decision was taken in an incorrect composition, calling into question the legal validity of that decision, the case should be remitted to the department of first instance. The board concurred with the finding in T 990/06 that under these circumstances considerations of procedural economy can play no role.