R 0014/25 and T 0345/24 - Punished for filing an AR

Key points

• The proprietor filed a new AR-1 during the oral proceedings before the Board. The earlier filed ARs moved "one down". The TBA did not admit the newly filed AR-1 (there were no exceptional circumstances, according to the TBA). Does this course of events affect the admissibility of the lower-ranking ARs?
• The TBA in case T 0345/24 held it did. "
• "Such a re-ranking is ... an amendment to the proprietor's appeal case and its admittance is at the discretion of the Board. Under such circumstances the Board's discretion is to be exercised in view of inter alia procedural economy (see Article 13(1) RPBA, last sentence)."
• The ARs at issue were filed with the SoG of the proprietor. The TBA decision does not indicate whether the ARs were decided on (and rejected) by the OD. 
• The TBA reasons that the re-ranking is a case amendment "due to the procedural effects of such a change, such as consideration of alternate subject-matter"
• Given that the AR was not admitted on procedural grounds, the subject-matter of new AR-1 was not examined on the merits.
• Claim 1 of new AR-1 includes a feature that was not recited in the older, lower-ranking requests. I note that new AR-1 was filed to address a successful objection of intermediate generalisation. 
• The Board then hold the ARs filed with the SoG inadmissible.
• So, if you have a supposedly safe AR (under Art. 12(2)), it may become inadmissible by the filing of another higher-ranking AR, according to this decision.
• A precedent that repeatedly shuffling the order of the requests can render the ARs inadmissible is T 0716/17. However, the present case is not about repeated reordering of requests. 
• See also T 0020/25, to be discussed soon.
• Regarding the petition for review, the EBA declines to review whether the re-ranking was indeed a case amendment, and hence declines to review whether the TBA had a discretionary power to hold the AR inadmissible. 
• "The EBA's review is restricted to the question of whether the petitioners had an opportunity to comment on the Board's qualification of [the old ARs] as an amendment [...]. ... The EBA's review cannot lead to a substantive examination through the back door of the criticised treatment of the [...] filing of new auxiliary request 1 by the Board which lead to the [TBA's] conclusion that the reranking of [the old ARs] was an amendment to the petitioners' case."
• Hence, the EBA does not review whether the reranking of the old ARs -  note, this means simply inserting one higher ranking AR - is a case amendment. 
• Compare R 10/24: "Because of the severity of the interference caused by the non-admission of amended submissions under the provisions of the RPBA, i.e. Articles 12 and 13 thereof, the interpretation and application of those provisions, which qualify the right to be heard, are subject to substantive review and not merely to review for arbitrariness. In this respect, the right to be heard is infringed, for example, also where such provisions are applied in a manifestly incorrect manner. " (translated headnote)
• I consider R 10/24 to be well reasoned. However, see also below for the context of the present case. 
  
  
• Having said all that, the patentee did not simply file new AR-1, but "filed a new auxiliary request 1 and stated that the other auxiliary requests would be withdrawn on the condition that this request be admitted". I could see why the Boards may wish to avoid any appearance of bargaining about requests. 
  
• Also, the Art. 123(2) issue for the MR was as follows: " Relative to claim 1 as filed, feature 1.3 has been introduced into the claim, in which the ADL is defined to be 'in contact with' the body-facing side of the absorbent core. The basis for this amendment was stated by the opposition division to be paragraph [0198] of the application as filed where, however, the ADL is disclosed to be 'in good contact with' the body-facing side of the absorbent core. The Board sees the omission of the qualifier 'good' to lack a direct and unambiguous basis in the application as filed." I can see how adding the term "good" could introduce questions of clarity (if the amendment is open to examination of clarity under G 3/14). 
• The TBA added, obiter, that all the old ARs seemed to suffer from the same Art. 123(2) issue as the main request. That seems entirely logical, given the procedural development of the case. In that event, the old ARs were not a response to the Art. 123(2) objection that was found prejudicial to the MR, and the proprietor's right to be heard to reply to that Art. 123(2) is not affected by the decision to not admit the old ARs, possibly. 

• EPO R 14/25

The link to the decision is provided after the jump.

R 16/23 - On the right to oral proceedings

Key points

• This is the 13th successful petition for review, by my count. 
• The EBA corrects J 6/22, wherein the LBA had intentionally denied oral proceedings (and had dismissed the appeal), despite a valid request for oral proceedings of the applicant, in a case with a request for re-establishment for the late filing of the statement of grounds.
• Moreover, even though the underlying case is unusual, the LBA's reasoning was, though extensive on the legal points, quite generic and indeed suitable for copy/past in other (re-establishment) cases, as a TBA did in T 1874/23.
• The written reasoning of the LBA to deny the appellant's right to oral proceedings was extensive, and relied essentially on a purported 'dynamic' interpretation of Article 116, referring to the "substantial yearly number of appeals being filed and a considerable workload for the boards. Furthermore, the timely adjudication of cases has become a matter of increased interest to the stakeholders in the system, while it remains a challenge for the boards to carry out their function of effec­tively brin­ging justice to all parties within a reaso­nable time frame."
• The EBA holds, in the headnote, that "As oral proceedings had been requested by the appellant-applicant in the event that an adverse decision on the request for re-establishment of rights and on the appeal were taken, the [Legal Board of Appeal] should have arranged for the holding of oral proceedings pursuant to Article 116(1) EPC before taking any such adverse decision.
• " The failure to arrange oral proceedings constitutes a fundamental procedural defect within the meaning of Article 112a(2)(d) and Rule 104(a) EPC since, as a result, the appellant-applicant did not have the opportunity to present the case orally on the decisive issues of re-establishment of rights and the admissibility of the appeal"
• The EBA: "The second consideration referred to in the decision under review relates to aspects such as a timely adjudication of cases and the creation of legal certainty.  These are indeed aspects of great importance. The starting point is, however, that they are to be taken into account within the legal framework as provided by the legislator. In the view of the Enlarged Board, they are not sufficient on their own to justify a dynamic interpretation that would limit the scope of application of Article 116(1) EPC in such a way that a right to oral proceedings could be balanced against them."
• In addition, "As already stated in decision T 383/87, Article 116(1) EPC guarantees the right of any party to request oral proceedings, i.e. to argue its case orally before the relevant instance of the EPO. This includes the right for the party requesting oral proceedings merely to present orally what it has already submitted in writing (see also R 3/10, Reasons 2.11 confirming T 125/89, Reasons 7), without having to fear that, if it does so, the deciding body will order a different apportionment of costs for that reason alone (see also T 125/89, Reasons 7; T 383/87, Reasons 9)."
  
• The EBA's reasoning is extensive and clear. I recommend reading the entire decision. 

• The successful petitions are now: R 16/23; R11/23, R 12/21,   R3/22,  R 5/19 , R 4/17 , R 3/15, R 2/14 , R 15/11, R 3/10, R 7/09 , R 21/11 , R 16/13 (sorry  no links). See also the list here.

EPO 

The link to the decision is provided after the jump.

R 0016/22 - No petitions for review against interlocutory decisions

Key points

• This decision concerns a 'submarine' petition for review, in the sense that nothing about the petition was visible in the online file (only a remark in the "about this file" tab) until the written decision was issued in October 2025. The online file has been completed since then.
• The petition for review was filed on 14.06.2022. The Enlarged Board, in a three-member composition, took up the petition for review in 2024 (point XIV). Admittedly, in the meantime, a lot had happened in the case. Oral proceedings took place on 07.02.2025. The EBA decided to forward the case to the five-member panel (this decision is not visible in the online file). 
• The five-member panel included an external legal member (Austrian judge).
• The present decision in the translated headnote: "An interlocutory decision by which a Board of Appeal, in its composition as a substitute Board, has rejected as unfounded a motion to recuse the three members of the original Board composition on the grounds of bias (interlocutory decision on bias) is not a decision against which an independent or separate request for review within the meaning of Article 112a EPC may be lodged."
• The EBA thereby confirms R 5/23 (issued in July 2024, by a three-member panel of the EBA) and departs from R2/15.
• The EBA, in translation: "the lack of analogous applicability of Article 106(2) EPC does not mean that there can be no restrictions regarding the reviewability of interlocutory decisions under Article 112a EPC."
•  "The purpose and aim of the review procedure ("Sinn und Zweck des  Überprüfungsverfahrens"),  in particular its design as an extraordinary remedy, are aspects that do not support equating petitions for review with appeals with regard to the available grounds, nor do they support a more lenient practice in reviewing appeal decisions. Rather, they argue for a stricter assessment of the admissibility of review requests. "
• "The legal consequence of a successful request for review is, according to Article 112a(5) EPC, the annulment of the decision and the reopening of the proceedings before the Boards of Appeal.  ...  The term "reopening of the proceedings" (or "re-opening of the proceedings" and "réouverture de la procédure" in the English and French versions of the regulations) linguistically presupposes that the decision under review is a decision that concluded the appeal proceedings." 
• As a comment: any grievances of a party against the interlocutory decision likely can be raised in a petition for review of that party against the final decision, provided that the party is adversely affected by the (order of the) final decision of the Board. 
• The underlying case is T 2175/15. There were five partiality objections. The appeals were withdrawn. There was also a decision on the costs. An overview can be found in this earlier post.

EPO 

The link to the decision can be found after the jump.

R0019/23 - Is the Disciplinary BoA a BoA?

Key points

• Article 112a(1) provides that "Any party to appeal proceedings adversely affected by the decision of the Board of Appeal may file a petition for review of the decision by the Enlarged Board of Appeal."
• The party (EQE candidate) was adversely affected by a decision of the Disciplinary Board of Appeal and filed a petition for review. What could go wrong?
• Well, it turns out that the DBA is not a Board of Appeal (in the meaning of Art. 112a EPC).
• The answer was, for the larger part, already given in D3/20 and D5/82 (point 5 of the reasons): the DBA is not a Board of Appeal in the sense of Article 112 (referral of questions to the EBA). The present decision extends that to Art. 112a.
• The interested reader is referred to the Board's reasoning in the decision. The link can be found after the jump. 
• The DBA and the EQE were set up simultaneously on 21.12.1977. The first EQE regulation can be found in OJ 1978 p.101. The possibility of appeal to the DBA was included from the outset. The first Regulation on Discipline can be found in OJ 1978 p.91.
• Art. 22(3) of the first Regulation on Discipline specifies that Art. 111(1) and (2), first sentence, apply "mutatis mutandis", which indicates that the DBA was not a Board of Appeal: otherwise Art. 111 EPC would have applied directly. This is confirmed by Art. 25 of that Regulation: "1) Article 113, paragraph 1, Article 114, Article 117 with the exception of paragraph 2, Article 125 and Article 131, of the European Patent Convention shall apply mutatis mutandis to proceedings before the Disciplinary Bodies."
• A bit of history of the EQE: "the appellant emphasised that the only possible explanation for the bad results of the first Qualifying Examination [in 1979] as a whole, which 64% of candidates failed, was the restrictive approach and severity of the examiners ..." (D5/82)

EPO 

The link to the decision can be found after the jump.

R 0005/23 - No petition for review against interlocutory decisions

Key points

• The Enlarged Board (in three-member composition) clarifies that petitions for review cannot be filed against interlocutory decisions of a Board of Appeal.
• The Enlarged Board in headnote (translated): "An interlocutory decision by which a Board of Appeal, in its composition as a substitute Board, has rejected as inadmissible a motion for recusal directed against its three members on the grounds of suspicion of partiality is not a decision against which a petition for review within the meaning of Article 112a EPC can be filed."
• Point 6 of the reasons confirms this holds for any interlocutory decision.
• The Enlarged Board: "The legal consequence of a successful petition for review is, according to Article 112a(5) EPC, the annulment of the decision and the "resumption of the proceedings before the Boards of Appeal"."
• "Accordingly, the review procedure under Article 112a EPC, as the relevant provisions are worded, does not in any event concern decisions which do not terminate proceedings before a Board of Appeal as regards the person concerned."
• " the Enlarged Board of Appeal is of the opinion that the application of Article 106(2) EPC in the context of the review procedure is out of the question. " 
• As a comment, a petition for review filed after the final decision can then also be based (exclusively) on a procedural violation of an interlocutory decision, provided that the petitioner shows that the outcome of the final decision could have been different (and more favourable for it) without the procedural violation; cf. J37/89, r.4.2-4.3 for Art. 106(2).

EPO 

The link to the decision and an extract of it can be found after the jump.

R 0001/20 - Petition for review case

Key points

• The petition for review was filed on 03.02.2020. The decision of the Enlarged Board in a three-member composition to unanimously reject the petition as clearly unallowable was taken in writing on 12.07.2024 after the cancellation of the oral proceedings. 
• Hence, the procedure before the Enlarged Board in the three-member composition lasted 4 years and 5 months.
• Let me cite the Explanatory Remarks to the EPC 2000, Article 112a EPC, from OJ 2007 Special Edition 4 (link): 
• 12. "The possibility of filing a petition for review must not cause long-lasting legal uncertainty for third parties. "
• 18. "In the interest of a quick and effective screening of petitions for review which are clearly inadmissible or not allowable, special procedural provisions apply to the three-member panel of the Enlarged Board established under Article 22(2), second sentence, and Rule 109(2) EPC 2000 (see explanatory remark n° 4 to Article 22 EPC). "
• "The proceedings before this panel shall be as simple and short as possible."
• "Therefore, this body shall decide in written summary proceedings without the involvement of other parties and on the basis of the petition (see Rule 109(3) EPC 2000). A quick screening procedure at the outset of review proceedings to sort out petitions which clearly cannot be successful is essential in order to avoid an inappropriate prolongation of legal uncertainty for third parties. It is also of great importance to counteract effectively intentional prolongation of proceedings by filing a petition for review."

• The complete timeline of the application is as follows: PCT application filed in 2008, request for entry in 2010, grant in 2011, opposition filed in 2011, decision OD in 2015, and Decision Technical Board of Appeal in 2019. 

EPO 

The link to the decision can be found after the jump.

R 0007/21 - Review of decisions to hold inadmissible

Key points

• "The exercise of discretion [by the Board of Appeal] is only subject to review if arbitrary or manifestly illegal, ("... illégalité manifestes ...", see R 10/11 para 5.2), thereby involving a fundamental violation of the right to be heard (R 9/11)."
• This implies that the Enlarged Board will only allow a petition for review based on a violation of the right to be heard by a decision of a Board to hold a submission inadmissible if the exercise of discretion by the Board is arbitrary or manifestly illegal (but then will do so) (and provided that the Board indeed had a discretionary power to hold the submission inadmissible). 
• Decision  Board of Appeal: 19.03.2021 (written decision). The decision of the Enlarged Board of Appeal in the three-member panel was issued on 05.03.2024 (written decision). 
• Decision OD: 2018. Grant: 2014. Filed as PCT application: 2006. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

T 2378/13 (II) - The inventive step attacks get their day in court

Key points

•  This is the follow-up to R 5/19, which was the 9th successful petition for review.
• In the first decision, the Board had reasoned that the opponent as the appellant had submitted with its statement of grounds (in translation) " a variety of different arguments against the inventive step of [operative claim 1]. However, none of these arguments are based on the generally accepted problem-solution approach for assessing inventive step. Consequently, the complainant's allegations concerning the inventive step in writing are disregarded in this decision. During the oral proceedings, before the board, the [opponent] made attacks using the problem-solution approach, which the board acknowledged." The board only considered inventive step starting from D6 and found that claim 1 was inventive. 
• The statement of grounds of the opponent included three inventive step attacks which appear, each individually, to state the distinguishing feature and the objective technical problem (e.g. the attack on p.24 starting from D13); for each attack, detailed comments were given on the (adverse) reasoning in the impugned decision of the opposition division.  
• The Board, after the remittal from the Enlarged Board, considers the inventive step attacks and concludes that the claims are inventive (only a dependent claim was further amended to address a clarity issue). The Board's reasoning seems fairly detailed, but it is not my technical field. This time, however, multiple inventive step attacks in parallel are considered and discussed by the Board.
• The OD had taken a decision to maintain the patent in amended form while the petition for review was pending (and the B2 publication was published). The Board expressly sets aside that decision.
• The Board, in machine translation:  "Neither in Article 112a nor in Rule 108 or in its other provisions does the EPC contain an express statement as to whether decisions of the opposition division which took effect in the period between the adoption of the board of appeal decision and the adoption of the review decision of the Enlarged Board of Appeal automatically become effective as a result of the reversal of the Board of Appeal decision and the resumption of the appeal proceedings become ineffective or whether this requires an express reversal of these decisions. However, as part of the review procedure that has been introduced, it is necessary to interpret the existing procedural rules to the effect that a request is admissible which aims to remove the effect or legal appearance of a decision already given by the opposition division which is not in accordance with the final decision of the opposition division Board of Appeal after the reopening of the appeal proceedings. Indeed, it would be contrary to the spirit of a review procedure and to legal certainty if decisions of the opposition division which took effect in the period between the issue of the first Board of Appeal decision and the issue of the review decision of the Enlarged Board of Appeal and which are not consistent with the final Board of Appeal decision in the resumed proceedings actually exist or would even appear to be effective. Ultimately, the purpose of the review process is to ensure effective legal protection and a fair process. This can only be done if there are no decisions of the opposition division based on the decision of the Board of Appeal which have been set aside and which could perpetuate the result of the proceedings before the review proceedings are carried out or at least be suitable for creating a corresponding legal appearance."

EPO 

The link to the decision is provided after the jump

T 0379/10 - After petition for review

T 0379/10
For the decision, click here. [C] / DE

Headnote
Bei der Wiederaufnahme des Beschwerdeverfahrens aufgrund einer Entscheidung gemäß Artikel 112a(5) EPÜ ist das wiederaufgenommene Beschwerdeverfahren auf die Behebung des in der Überprüfungsentscheidung festgestellten schwerwiegenden Mangels beschränkt.

Key points

• After resumption of the appeal procedure because of a successful petition for review, the reopened appeal procedure is limited to remdying the serious procedural violation as found by the Enlarged Board.

Sachverhalt und Anträge

I. Das Europäische Patent Nr. 1 487 832 betrifft ein kristallines Mikronisat von Tiotropiumbromid.

II. Die Beschwerde der Patentinhaberin richtet sich gegen die Entscheidung der Einspruchsabteilung, das Patent zu widerrufen.

III. Am Ende der mündlichen Verhandlung vom 5. März 2013 entschied die Kammer in der gegenwärtigen Besetzung, die angefochtene Entscheidung der Einspruchsabteilung aufzuheben und die Angelegenheit an die erste Instanz mit der Anordnung zurückzuverweisen, das Patent mit den Ansprüchen des Hilfsantrags 2 und einer noch anzupassenden Beschreibung aufrechtzuerhalten.

IV. Die Beschwerdeführerin und Patentinhaberin beantragte die Überprüfung der Entscheidung vom 5. März 2013 gemäß Artikel 112a EPÜ durch die Große Beschwerdekammer. Mit der am 26. Mai 2015 zur Post gegebenen Entscheidung vom 8. Dezember 2014 (Rechtssache R 16/13) hob die Große Beschwerdekammer die Entscheidung der Kammer vom 5. März 2013 auf und ordnete die Wiederaufnahme des Verfahrens vor der Beschwerdekammer 3.3.01 an. Den Antrag, die Mitglieder der Beschwerdekammer zu ersetzen, welche an der aufgehobenen Entscheidung mitgewirkt hatten, wies die Große Beschwerdekammer zurück.

V. Entsprechend nahm die Kammer das Beschwerdeverfahren in unveränderter Besetzung wieder auf. Mit dem Formbrief vom 5. Juni 2015 lud sie die Parteien zur für den 23. September 2015 terminierten mündlichen Verhandlung. In dem der Ladung beigefügten Bescheid fasste sie die Entscheidung R 16/13 zusammen und lud die Parteien ein, zu den gemäß dieser Entscheidung im wiederaufgenommenen Verfahren zu behandelnden Punkten Stellung zu nehmen. Für den Fall, dass die Beschwerdeführerin und Patentinhaberin geänderte Anspruchssätze einreichen wolle, setzte ihr die Kammer eine Frist von zwei Monaten nach Zustellung der Ladung.

R 0016/13 - Successful petition for review

EPO Headnote

Das Recht nach Artikel 113 (1) EPÜ, gehört zu werden, ist verletzt, wenn eine Beschwerdekammer zur Begründung ihrer Entscheidung ex officio im Verfahren nicht vorgebrachte Gründe heranzieht, ohne der dadurch benachteiligten Partei, Gelegenheit gegeben zu haben, zu diesen Gründen Stellung zu nehmen und, soweit die Patentinhaberin betroffen ist, entsprechende neue Anträge einzureichen, es sei denn, der Partei ist es nach dem Verfahrensablauf ersichtlich möglich gewesen, aus eigenem Fachwissen sich die Argumentation der Kammer zu erschließen.

Informal translation
The right to be heard under Article 113(1) EPC is violated when a Board of Appeal in support of its decision draws ex officio upon reasons which were not put forward in the procedure, without giving, to the party adversely affected thereby, an opportunity to comment on these reasons, and, as far as the patentee is concerned,  an opportunity to submit new requests, unless it was clearly possible for that party to infer the reasoning of the Board based on the course of the proceedings and his own expertise.


R 16/13 published 27.05.2015 " Kristallines Mikronisat des Tiotropiumbromids" 
Dated 08.12.2014 - Enlarged Board of Appeal - [B] - DE - for the decision, click here

Informal summary

• This is the fifth successful petition of review (after R15/11, R21/11, R3/10 and R7/09).
• In review of T 0379/10.
• The Opposition Division had considered the main request to lack inventive step with D2 as closest prior art.
• In appeal, the Patentee had argued that D24 was the closest prior art. A technical effect was supported by D11A, a report of comparative experiments demonstrating the technical effect (better stability) over D24.
• During Oral Proceedings before the Board, the debate was whether D2 or D24 (and possibly D25) was the closest prior art.
• The Board thereafter announced that it considered the main request to lack inventive step over D25, without giving specific reasons and refusing to give these when requested by the Patentee. In the written decision at [4.5], the Board considers that the alleged technical effect is not credible based on report D11A because some of the parameters specified in claim 1 were not specified therein. Hence, the objective technical problem was providing alternative micronized compositions.
• This results in the following reason of the Enlarged Board: 

2.2 Der dafür maßgebliche Grund [for not accepting the technical effect], D11A gebe die Parameterwerte des mit dem Stand der Technik verglichenen Produkts unvollständig wieder, so dass die dort dokumentierten Vergleichsversuche zur Stützung der geltend gemachten verbesserten Stabilität und zur Bejahung einer erfinderischen Tätigkeit nicht ausreichten, wurde jedoch nach den Feststellungen der Großen Beschwerdekammer in dem gesamten, der Entscheidung vorausgegangenen Verfahren nicht angesprochen. Er ist weder von den Parteien vorgetragen worden, noch hat ihn die Kammer von sich aus zur Sprache gebracht, noch ist er in der mündlichen Verhandlung erörtert worden. Dies hat die Einsprechende im vorliegenden Verfahren nicht geleugnet, sondern sogar implizit durch ihren Vortrag bestätigt.

• Hence, the reason of the Board for finding that D11A did not make the technical effect credible was that D11A did not show that the " inventive"  product had in fact all properties as defined in claim 1. This issue had not previously been raised by anyone in the proceedings.
• The Enlarged Board concludes that the issue was introduced by the Board through the examination of its own motion under A114(1). ([5.1]).
•  Although this is in principle allowed, with the following general proviso regarding the right to be heard: 

5.2 Dagegen ist grundsätzlich nichts einzuwenden. Wenn die Beschwerdekammer jedoch entscheidungserhebliche Überlegungen anstellt, die bisher im Verfahren von keiner Seite angesprochen worden sind, hätte sie diese den Parteien im Ladungszusatz oder spätestens in der mündlichen Verhandlung zur Kenntnis bringen müssen. Etwas anderes gilt allenfalls, wenn die Kammer berechtigterweise hätte annehmen dürfen, die Patentinhaberin und die Einsprechende bzw. ihre Vertreter würden ohne Zweifel aufgrund ihres Fachwissens und ihrer Erfahrung mit Vergleichsversuchen in Patentangelegenheiten von sich aus die fragliche Argumentation der Kammer erkennen und in ihren Parteivortrag einbeziehen können.

•  In the present case, this was not complied with, basically because the Patentee had no reason to doubt its interpratation of D11A.

 [5.4] (...) Deshalb hat sich ihr keine Möglichkeit eröffnet, die Auffassung der Kammer, in D11A seien die Parameter des mit dem Stand der Technik verglichenen, erfindungsgemäßen Mikronisats nicht vollständig angegeben bzw. die drei letzten in Anspruch 1 aufgelisteten Parameter fehlten vollständig, zu erkennen und sich dazu zu äußern.

• After further noting that the Board had refused to indicate its reasons after announcing its finding of lack of inventive step over D25, the Enlarged Board finds a violation of the right to be heard, and sets aside the decision under appeal and the case is remitted to the (same) Board.