9.6.1 Discretion despite special reasons

Under Art. 111(1) EPC, a board, having examined the allowability of an appeal, decides on it either by exercising any power within the competence of the department which was responsible for the decision appealed or by remitting the case to that department for further prosecution. Which of these two options the board chooses depends on the specific facts of the case before it and is a matter which is at its discretion. Art. 11 RPBA 2020 sets out that as a rule, fundamental deficiencies which are apparent in the proceedings before that department constitute such special reasons.

In T 3085/19 the board pointed out that the wording "as a rule" ("in der Regel", "en règle générale") is mirrored as meaning "normally" ("normalement", "in der Regel") in the explanatory remarks on Art. 11 RPBA 2020 (Supplementary publication 2, OJ 2020). This correctly reflects that Art. 11 RPBA 2020 does not deprive the boards of the discretion conferred on them by Art. 111(1) EPC. Hence, even if a fundamental deficiency is apparent, the board still has discretion not to remit the case to the examining division but to deal with the substance of the case itself (see also T 1635/19).