9.3. Special reasons for remittal
In T 350/17 the respondents argued that remitting the case would unnecessarily delay the proceedings. The board considered that, in the case in hand, the patentee's request to have the question of inventive step examined at two different levels of jurisdiction took precedence over procedural economy, because the patentee was deprived of a decision at first instance on this matter as a result of the substantial procedural violation. For the sake of completeness, the board also noted that the concept of "special reasons" in Art. 11 RPBA 2020 should not be narrowly interpreted in a way which unduly restricts the discretion of the board to remit a case enshrined in Art. 111(1) EPC, as this would be contrary to the spirit of the Convention, which, in case of conflict, takes precedence (see Art. 23 RPBA 2020).
In T 894/20 the board observed that inventive step was not among the reasons for the appealed decision. As the primary object of appeal proceedings was to review the decision under appeal, the board considered this, and the fact that the case had been taken considerably out of turn, meaning there were another 14 years of a potential 20-year patent term left to run, to be special reasons for remitting the case to the examining division.
In T 2017/16 the board remitted the case to the opposition division for consideration of the ground for opposition of lack of inventive step, even though this would inevitably lengthen the proceedings and cause the parties additional costs.