Bindungswirkung von Beschwerdekammer-Entscheidungen

If a board remits a case to the examining division for the grant of a patent in a precisely defined version, i.e. with precisely defined claims, description and drawings, the decision on the text of the patent is based on Art 111 (1), 2nd sentence, alternative 1, EPC. This text of the patent is binding for the examining division in application of the legal principle laid down in Art 111 (2) EPC (res iudicata, legally binding), in which application also the remittal is made. The procedure under R 71 (6) EPC does not apply with regard to the binding effect resulting from Art 111 (2) EPC because in case of lack of conformity between provisions of the Convention and provisions of the Implementing Regulations, the provisions of the Convention take precedence according to Art 164 (2) EPC (EPO Board of Appeal, 8/11/2021,T 2558/18).