9.4.2 Article 11 RPBA 2007

Under Art. 11 RPBA 2007, a board was to remit a case to the department of first instance if fundamental deficiencies were apparent in the first-instance proceedings, unless special reasons presented themselves for doing otherwise. In other words, the rule was that a case was to be remitted if a fundamental procedural deficiency had been identified, but a board could exceptionally refrain from doing so if it found that there were special reasons not to. Fundamental deficiencies included a violation of the right to be heard, deficient reasoning for the decision, a breach of Art. 19(2) EPC, a lack of clarity as regards the parties' requests and a failure to hold oral proceedings.

If any special reasons were established, the boards were to refrain from remitting a case to the department of first instance even if there had been fundamental deficiencies in the proceedings before it. Special reasons identified by the boards against remitting the case included the lengthy duration of the proceedings to date, the age of the application or patent and the fact that the department of first instance had considered all the arguments.

See Case Law of the Boards of Appeal, 9th edition, 2019, V.A.7.7.