Art. 111(2) EPC provides that, where a board of appeal remits a case to the EPO department of first instance whose decision was appealed, that department is bound by the board's ratio decidendi, in so far as the facts are the same. If the decision under appeal was taken by the Receiving Section, the examining division is also bound by the board's ratio decidendi.

The boards have remitted several cases to the department of first instance for adaptation of the description to amended claims.

- Length of proceedings

It is generally accepted by the boards that the additional time that would be needed to bring the first-instance proceedings to a close can usually be considered a "special reason" not to remit a case (T 1423/15).

In T 1363/14, the board classed an opposition division's failure to hear witnesses put forward as a fundamental deficiency.