T 0492/16 - Not mentioning Art. 11 RPBA

 Key points

• This is an examination appeal. “Lack of novelty over the disclosure in document D1 was the sole reason given in the decision under appeal for not allowing the main request. The board has reviewed this finding. The examining division has not taken an appealable decision on any other patentability requirement with respect to the set of claims of the main request. ”
• This is of course nothing unusual. Nevertheless the Board remits the case to the Examining Division. The Board does not expressly identify any 'special reasons' for remitting as specified by Art. 11 RPBA 2020. In the decision, the Board directly refers to Art. 111(1) EPC as giving the Board a discretion to remit without any mention of Art. 11 RPBA 2020. 
• The applicant had requested the remittal, so that could be the special reason for remitting.

https://www.epo.org/law-practice/case-law-appeals/recent/t160492eu1.html 

Remittal - Article 111(1) EPC

14. Pursuant to Article 111(1) EPC, following the examination as to the allowability of the appeal, the board will decide on the appeal and, in this respect, it may either exercise any power within the competence of the department which was responsible for the decision under appeal or remit the case to that department for further prosecution.

15. Lack of novelty over the disclosure in document D1 was the sole reason given in the decision under appeal for not allowing the main request. The board has reviewed this finding. The examining division has not taken an appealable decision on any other patentability requirement with respect to the set of claims of the main request. Accordingly, in line with the appellant's request, the board decides to remit the case to the examining division for further prosecution.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the examining division for further prosecution on the basis of the set of claims of the main request filed with the appellant's letter dated 7 October 2019.