An appellant is entitled to withdraw his appeal at any time. Based on the principle of free party disposition, this right may not be restricted, even implicitly by the threat of cost apportionment, on the grounds that oral proceedings have been scheduled and the opposing party cannot be notified in time. As a rule, the benefits that respondents derive from the withdrawal of the appeal will offset the costs that they incur, even if they are avoidable. That is the case even if the appeal is only formally pending on account of the request for cost apportionment (T 490/05).
In T 85/84 the appellants withdrew the appeal in a telex to the EPO and the respondents' representative 48 hours before the date of the oral proceedings. The EPO forwarded this information, together with the decision to cancel the oral proceedings, to the respondents' representative, a member of its patent department, by telex sent at 4.17 pm. The telex did not reach the patent department until the next day. By this time, however, the respondents' representative had already departed in order to prepare for the oral proceedings in Munich. He requested apportionment of costs. Although the opposition and the appeal had been withdrawn, a decision was given on the apportionment of costs (see also T 765/89). The board refused to apportion the costs as the respondents' representative had been informed in good time that the oral proceedings would not be taking place. Internal delays in forwarding the communication were not the fault of the appellants. The representative's departure for Munich a day before the oral proceedings was not warranted by the distance and therefore not necessary from the point of view of the oral proceedings. The appellants should have been able to assume that their communication had reached the representative in good time. There had been no culpable conduct.
In T 614/89 the appellants withdrew the appeal for financial reasons four days before the date set for oral proceedings. The respondents were notified the same day. Respondents I filed a request for apportionment of costs on the grounds that they had already prepared themselves for the oral proceedings and the appellants must have known long before the date set that the appeal stood no chance of success. The board took a decision on the request, rejecting it on the grounds that the appeal had been withdrawn sufficiently promptly that no costs had been incurred for the oral proceedings. It also ruled that the right to oral proceedings was subject to no restrictions and that the appellants had acted neither negligently nor with wilful intent (see also T 772/95).
In T 674/03, the opponent withdrew its appeal nine days before the date set for the oral proceedings. The board held that the exercise of an absolute procedural right did not, in principle, constitute abuse. There was no evidence that the opponent had at any time acted in such an improper or negligent manner that a different apportionment of the costs was justified, especially where the costs for which reimbursement was sought were such as were usually incurred by a party in defending its interests in appeal proceedings.