9.6.3 Objections raised by the board

Objections raised by the board for the first time do not in themselves constitute special reasons for remittal. In T 1089/17 the board underlined this with reference to the stated aim of Art. 11 RPBA 2020 to reduce the likelihood of a "ping-pong" effect between the boards of appeal and the departments of first instance and a consequent undue prolongation of the entire proceedings before the EPO. The board had introduced a new document (a patent application filed by the appellant itself) in a communication.

The board in T 1803/14 rejected the appellant's request for a remittal because fairness of the proceedings had been guaranteed in that the board had raised its objections twice, at points in time which had given the appellant the opportunity to consider them and respond accordingly.

Even when the board raises a fresh objection at the oral proceedings, this does not as such necessarily constitute special reasons for a remittal. In T 1538/17 the board's new clarity objection was directly related to its and the appellant's diverging views on the interpretation of claim 1. This divergence had to be resolved before the examining division's decision refusing the then first auxiliary request (which essentially corresponded to the main request filed on appeal) for lack of inventive step could be reviewed. The board therefore considered it appropriate to deal with the clarity objection in the appeal proceedings.