9.3.1 Introduction

Under Art. 11 RPBA 2020, a case is not to be remitted to the department whose decision was appealed, unless special reasons present themselves for doing so.

Whether "special reasons" present themselves is to be decided on a case-by-case basis. If all issues can be decided without undue burden, a board should normally not remit the case (see explanatory remarks on Art. 11 RPBA 2020 in Supplementary publication 2, OJ 2020).

In T 1531/16, the board held that, in view of the legislative intent reflected in the revised version of Art. 11, first sentence, RPBA 2020, a case should be remitted only if special reasons presented themselves for doing so, i.e. in exceptional cases (see also T 3247/19).

When deciding whether or not to remit a case, the boards have to decide whether any special reasons within the meaning of Art. 11 RPBA 2020 present themselves. To do so, the boards examine e.g. whether there has been a comprehensive assessment of the case during the proceedings at first instance (see chapter V.A.9.3.2), whether the claims have been substantially amended (see point V.A.9.3.5), whether the search was complete (see chapter V.A.9.3.6) and whether the first-instance proceedings have been vitiated by fundamental deficiencies (see chapter V.A.9.4.). Other factors have also been taken into account, such as the need for procedural economy, the length of the proceedings, fairness of the proceedings and whether the parties requested remittal of the case. The weight given to each factor depended on the circumstances of the case in hand.

In essence, the boards tend to find that there are special reasons to remit the case when they would otherwise have to decide on material issues for the first time or in some other way essentially take the place of the department of first instance to too large an extent in order to bring the case to a conclusion (see e.g. T 1966/16).