This is an appeal against the decision of the Examining Division (ED) to refuse the application under consideration for lack of novelty.
The notice of appeal was received on August 25, 2011.
On September 12, 2011 the ED found that the appeal was not to be rectified and that the case was to be referred without delay to the Boards of Appeal.
With a letter of October 24, 2011 the appellant filed a statement setting out the grounds of appeal together with sets of claims according to a new main request and new auxiliary requests 1 and 2.
 A 108 requires inter alia that a notice of appeal must be filed within two months after the date of notification of the decision and that a written statement setting out the grounds of appeal must be filed within four months after that date. In accordance with A 109(1), first sentence, if an ED whose decision is contested considers the appeal to be admissible and well founded it shall rectify its decision. It is evident that receipt of the statement of grounds of appeal is a prerequisite for an ED when applying the provisions of A 109(1), first sentence, to consider whether the appeal is well founded.
 In the present case, the ED issued the order to refuse interlocutory revision and to refer the case to the Boards of Appeal before any statement setting out the grounds of appeal was filed and before the expiry of the four month time limit for filing the statement of grounds.
By refusing interlocutory revision before the statement of grounds of appeal was filed together with amended claims according to a new main request and a new auxiliary request 1 and 2, the ED could not have considered whether these amended claims overcame the reasons for refusal before ordering that the case be referred to the Boards of Appeal.
 It is customary that an appealing party takes advantage of the two time limits provided for in A 108, first and third sentences respectively, by firstly filing a notice of appeal and later filing the statement of grounds and it has the right to fully exhaust those time limits. It is incumbent on the ED to wait until the filing of the full content of the statement of grounds or the expiry of the four month time limit, whichever comes first. In the present case the issuance of the order to refuse interlocutory revision before receipt of the statement of grounds deprived the appellant of the possibility of a fore-shortened appeal procedure provided by A 109 and amounts to a substantial procedural violation, see T 41/97 .
 However, despite the presence of a substantial procedural violation the board considers that it would not be equitable to reimburse the appeal fee under R 103(1)(a). The established procedural violation cannot have been causative in filing the appeal since it occurred after the notice of appeal had been filed.
 In accordance with Article 11 RPBA (OJ EPO 2007, 536 to 547) if fundamental deficiencies are apparent in the first instance proceedings a case is to be remitted to the department of first instance unless special reasons present themselves for doing otherwise. In the board’s view, no such special reasons are apparent and remittal is thus appropriate. Moreover, the appellant explicitly consented to the remittal to the department of the first instance.
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