The practice before the boards of appeal is that all requests by parties, including any requests as to costs, should be made before any decision is announced in oral proceedings (T 212/88, OJ 1992, 28) in the case cited here, however, the request for apportionment of costs was considered exceptionally, because the parties were not, at the time, aware of this practice.
There is no basis for deciding on a different apportionment of costs if the party which would benefit from the decision did not request apportionment and even made it known that it would not enforce any such decision (T 408/91). This applied even if the board considered an apportionment of costs to be equitable (see also T 125/93).
A request for apportionment of costs submitted by the respondent merely as a party to the appeal proceedings as of right (Art. 107, second sentence, EPC 1973; editorial changes in German and French; unchanged in English) must be rejected as inadmissible as it would otherwise contravene the principle of equal treatment (T 753/92 and T 514/01, T 1237/05).
In T 896/92 the request for a different apportionment of costs was rejected for lack of substantiation and because of the absence of obvious reasons. In decision T 193/87 (OJ 1993, 207) the board likewise refused the apportionment of costs, because it could not see any reasons of equity which could justify such an apportionment of the costs, nor had the respondent brought forward any evidence in this respect. In several decisions, the boards of appeal have stressed the importance of submitting evidence to support a request for a different apportionment of costs (e.g. T 49/86, T 193/87, T 212/88, OJ 1992, 28; T 404/89, T 523/89, T 705/90, T 776/90 and T 306/93).