Filing of opposition or appeal 

An apportionment of costs is often requested on the grounds that the notice of opposition or appeal has been incorrectly filed.

In T 170/83 the opponents had used an incorrect form for payment of the opposition fee, thereby giving rise to a decision by formalities to reject the opposition; the opponents thereupon filed an appeal against this decision. The patent proprietors (respondents) requested that the appeal costs be awarded against the appellants, since it was their error which had rendered the proceedings necessary. The board rejected the request, taking the view that the appeal proceedings were not improper. An abuse justifying the apportionment of costs could only be rooted in the party's conduct during the proceedings.

In a number of cases the boards took the admissibility or allowability of an opposition or an appeal to be an indication that no abuse had taken place (e.g. T 7/88 and T 525/88). Similarly, in T 506/89, the board found that the opponent's filing of an appeal did not constitute an abuse of procedure and therefore rejected the request for a different apportionment of costs, since it had decided, in the oral proceedings, to maintain the patent as amended. Nor was there an abuse of procedure where the appeal was filed without new arguments (T 605/92) or where the appellant's chances of success were considered to be low (T 318/91).

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