There is no definition of equity in the EPC. The boards of appeal therefore had to develop the criteria determining whether costs were to be apportioned on a case-by-case basis. In a number of decisions it has generally been stated that apportionment of costs is justified if the conduct of one party is not in keeping with the care required, that is if costs arise from culpable actions of an irresponsible or even malicious nature (see, for example, T 765/89, T 26/92 and T 432/92). However, according to T 717/95 no abuse has taken place if a party to the proceedings misinterpreted the content of a citation when comparing it with the subject-matter claimed in the disputed patent. Similarly, in T 1771/08 the board concluded that an apportionment of costs under Art. 104(1) EPC could be ruled out from the outset for lack of equity if the appellant's representative had agreed to the proceedings' postponement unreservedly.
A thorough examination of the decisions of the boards of appeal reveals that requests for a different apportionment of costs are often filed in various scenarios in which costs are incurred for:
- late submission of documents and/or requests (see point 7.2.1 below);
- acts or omissions prejudicing the timely and efficient conduct of oral proceedings (see point 7.2.2 below);
- abuse of procedure (see point 7.2.3 below).