b) Primary object of the appeal proceedings 

In T 1966/16 the board stated that the sole ground for the refusal set out in the decision under appeal, namely a lack of inventive step, was not justified. The board held that special reasons were apparent in the case in hand because the examining division had not taken an appealable decision on open issues with respect to Art. 83, 84 and 123(2) EPC. Art. 11 RPBA 2020 did not entail the board carrying out a full examination of the application for compliance with the requirements of Art. 83, 84 and 123(2) EPC, for which no decision at first instance existed yet (see also T 2519/17).

In T 731/17 inventive step over documents D1 to D4 had not yet been assessed in detail. Moreover, it might still have been necessary to investigate whether document D2 belonged to the state of the art under Art. 54(2) EPC at all. Not remitting the case to the examining division would have required the board to perform these tasks in both first- and last-instance proceedings and to effectively replace the examining division rather than review the contested decision in a judicial manner (see also T 658/17).

In T 1627/17 sufficiency of disclosure was the only ground for opposition on which a decision had been taken. All the parties to the appeal proceedings had requested remittal of the case to the opposition division for consideration of the other grounds for opposition raised by the opponent in its notice of opposition (lack of novelty and lack of inventive step). The board stated that, although the EPC did not guarantee the parties an absolute right to have all the issues in the case considered at two instances, it was well recognised that any party could be given the opportunity to have two readings of the important elements of a case. The essential function of an appeal was to consider whether the decision issued by the first-instance department was correct. In the case in hand, the aforementioned facts, including the request made by both parties, were in the board's view special reasons within the meaning of Art. 11 RPBA 2020. See also T 516/18.

In T 2450/17, the contested decision was based solely on the grounds for opposition under Art. 100(b) and 100(c) EPC. Since the novelty and inventive-step objections raised against the patent had not been fully examined by the department of first instance, the board found that there were special reasons for remitting the case to the department of first instance for further prosecution, as requested by all the parties. Had the case not been remitted, the losing side would have had to accept a first yet final decision on key patentability requirements, without the option to appeal, solely because a decision had already been handed down on other patentability requirements, albeit one that ultimately did not stand up to legal scrutiny. See the similar cases T 731/17, T 1754/15 and T 1966/16.