A party requesting oral proceedings is not obliged to be represented at them. Its duly announced absence could not be considered as improper behaviour. However, the boards consider it highly undesirable for summoned parties to announce too late or not at all that they will not be attending. Such conduct is inconsistent both with the responsible exercise of rights and with the basic rules of courtesy (see for example T 434/95, T 65/05).
There is an equitable obligation on every party summoned to oral proceedings to inform the EPO as soon as he knows that he will not be attending as summoned, regardless of whether he himself or another party requested the oral proceedings and of whether or not a communication accompanied the summons to oral proceedings. If a party who has been summoned to oral proceedings fails to attend as summoned without notifying the EPO in advance, an apportionment of costs in favour of another party, who has attended as summoned, may be justified for reasons of equity in accordance with Art. 104(1) EPC 1973 (established case law, see for example T 930/92, OJ 1996, 191; T 123/05).
(i) Different apportionment of costs ordered
In T 909/90 oral proceedings had been appointed at the appellants' request. Without giving the board or opponents any advance notice, the appellants did not attend the oral proceedings. Nor did they comment on the board's communication. For this reason in particular the oral proceedings contributed nothing new to the case. The board ordered the apportionment of costs without examining whether higher costs had been incurred as a result of the appellants' failure to appear.
In T 937/04 the appellant and patent proprietor informed the board by fax sent only to the EPO and not to the other parties on Friday, 17 February 2006, after business hours, at 16.27, that he would not attend the oral proceedings. Reasons justifying the filing of this information at such a late stage were not provided. The other parties were thus informed by the registrar of the board on Monday, 20 February 2006, i.e. one working day before the oral proceedings, that the appellant would not attend them. The board stated that the appellant, by informing solely the EPO and not the other parties, had failed to exercise all due care required and concluded that, for reasons of equity, an apportionment of costs should be accorded in favour of the respondent. According to the board in T 1079/07, however, to inform the EPO and any other party to the proceedings about the intention not to attend oral proceedings in due time is a matter of courtesy and respect rather than a procedural obligation to be met (see also T 69/07).
In cases where a party delays his decision not to attend oral proceedings or the communication of this decision to the board, an apportionment of costs in favour of the other party may be justified insofar as the costs were directly caused by the fact that the notice was not filed in appropriate time before the oral proceedings. In T 91/99, the board stated that, where an appellant failed to give notice that he would not be attending the oral proceedings until two working days before the date set for the proceedings, this could constitute negligent or wilful conduct which had to be considered under Art. 104(1) EPC 1973; however, in the case at issue, there was no culpable conduct on the part of the appellant which could justify an apportionment of costs under Art. 104(1) EPC 1973 (by contrast, in T 693/95 and T 338/90 costs were awarded because notice of the appellant's absence had been given, in the former case, only an hour before the oral proceedings and, in the latter, at the time when the oral proceedings were due to start).
The appellants' failure to advise the board in time that they would not be appearing at the oral proceedings was likewise the reason for ordering them to bear the costs in T 434/95. The decision referred to the Enlarged Board's opinion in G 4/92 (OJ 1994, 149), which construed the right to be heard as meaning that a decision adversely affecting a party which was duly summoned but did not appear could not be based on facts put forward for the first time during oral proceedings. The board held that the Enlarged Board's opinion was not relevant to its decision on the request for cost apportionment, as in the case in point there was no submission that could entail the presentation of new facts. The issue in the present case was rather the procedural consequences of a party's action in choosing not to attend. The opinion applied to substantive decisions on patents in suit, but not to the present case, where the respondent had presented no new facts in the oral proceedings (see also T 641/94 and T 123/05).
In T 53/06 the appellant requested oral proceedings "in case the board considers not to set the decision aside". As soon as it received the board's summons to oral proceedings and communication, the appellant knew not only that oral proceedings would take place but also that the condition it had itself placed on its own request for oral proceedings had been fulfilled, since the communication clearly indicated that the board's provisional opinion was that the decision under appeal would not be set aside. However, the appellant neither replied to the communication nor indicated at all, let alone as soon as it knew, that it would not attend oral proceedings. Since the respondent had, in the absence of any submissions from the appellant additional to those in the grounds of appeal, nothing to add to its own case in its reply to the grounds of appeal, the oral proceedings proved to be unnecessary. Accordingly, it was clear to the board that, as a result of the appellant's conduct, the oral proceedings were not only unnecessary but also an inefficient use of the time and effort of both the respondent and the board. Furthermore, the appellant could have made its position known well in advance of the date appointed for the oral proceedings, and thereby not only spared the respondent and the board unnecessary work but also allowed the date for the oral proceedings to be used for another pending appeal. In those circumstances, an apportionment of costs in favour of the respondent was held to be appropriate under Art. 16(1)(c) RPBA as well as under Art. 16(1)(e) RPBA (see also T 212/07, T 2179/09).
(ii) Refusal of a request for apportionment of costs
The non-appearance of a party generally does not adversely affect the party which did attend. A different apportionment of costs cannot be ordered if the parties which are affected have neither shown nor claimed that they incurred additional costs because the appellants were not present (T 544/94; see also T 632/88 and T 507/89).
In T 591/88 both parties had requested that oral proceedings be held - both in fact filing an "unconditional" request. Without giving any advance notice, the respondents failed to appear. The appellants requested apportionment of costs on the grounds that the oral proceedings would not have been necessary had they known that the respondents would not be attending. The board rejected a different apportionment of costs because the appellants had made an "unconditional" request for oral proceedings, i.e. also covering the eventuality that the other party would not appear.
In T 1441/06, the respondents had not asked for oral proceedings. They had not reacted to the board's communication, nor had they apparently had the intention to come or to notify the EPO of their intended absence at all. It was the appellant who had requested oral proceedings, albeit conditionally. In addition, the oral proceedings were not only arranged at the request of the appellants, but also because the board itself wished to be in a position to give a decision on the case. The oral proceedings would therefore not have been cancelled by the board even if the respondents had at an early time indicated that they would not attend. In these circumstances the board saw no sufficient reason to depart from the ordinary rule that each party bears its own costs.
In T 65/05 the respondent maintained that, like the appellant, it would not have attended the oral proceedings if it had been informed in time that the opposing party would not be appearing. In the case in point the board considered it doubtful that the oral proceedings could therefore have been waived or that the respondent would then at any rate not have attended them or would have withdrawn its request for oral proceedings. Both parties had submitted auxiliary requests for oral proceedings. The board had issued the summons without an opinion on the merits, in particular without any announcement or intimation that it was likely to decide in the respondent's favour. Therefore the respondent could not rely on a favourable decision purely on the basis of its written submissions if it stayed away from the oral proceedings. In these specific circumstances the board deemed it likely that that respondent (patent proprietor) would have appeared at the oral proceedings to defend its interests even if it had known that the opposing party would not be there. The request for a different apportionment of costs was therefore rejected (see also T 190/06).
In T 435/02, both the appellant and the respondent had filed an auxiliary request for oral proceedings. When filing its request, the respondent had wanted to attend the oral proceedings to ensure that the board would not overturn the decision under appeal without its having the opportunity to present its case orally. In response to the appellant's decision not to attend the proceedings, the respondent gave notice that it too would not be attending and commented that it had wished to attend "merely to rebut statements/arguments made by the patentee during these proceedings". Although the board expressly informed the parties that the oral proceedings would be held as planned, the respondent failed to attend. The respondent requested a different apportionment of costs because the appellant had withdrawn its request for oral proceedings so late that the respondent had incurred costs which no longer could be recovered. The board refused the request on the grounds that, contrary to the respondent's claim, its failure to appear was not a response to the appellant's decision not to attend but the result of a choice not to take the opportunity which it had requested to present its case orally.
In T 275/89 (OJ 1992, 126) the appellant's representative filed a request that the oral proceedings scheduled for 09.00 on 3 May be adjourned, on the grounds that the appellant was unable to attend the oral proceedings owing to illness. The request was submitted so late, i.e. in the afternoon of 30 April, that it was impossible in view of the public holiday the following day to notify the respondents in time: they had already set out during the afternoon of 1 May. The request for adjournment was refused however and the oral proceedings took place without the appellant. The respondents requested a different apportionment of costs on the grounds that they would not have attended either had they known that the appellant would not be appearing. The board, however, took the view that the appellant could not be made responsible for the fact that the respondents had chosen to make an early start to the journey. Furthermore, the only matter of importance was whether the appellant's absence rendered the oral proceedings unnecessary. This question had to be answered in the negative. The request for costs was therefore rejected.
In T 849/95 the respondent submitted a request for apportionment of costs, as the appellant had not informed the EPO in good time that he would not be taking part in the oral proceedings which he too had requested. The board rejected the request, as the oral proceedings were arranged not only at the request of both parties, but also because the board itself required further airing of facts on the part of the respondent. The oral proceedings would not have been cancelled even if the appellant had informed the EPO in good time.
In T 838/92 too, the appellants stayed away from the oral proceedings. The respondents requested a different apportionment of costs as they had appeared with seven witnesses. The board rejected the request because the witnesses had been summoned at the respondents' instigation in order to prove the prior uses alleged by the latter. There was therefore no reason to impose the costs on the appellant (cf. also T 273/07).