In T 765/89 it was stressed that the board was still responsible for deciding on the request that costs be awarded against the appellants even if the latter had withdrawn their appeal. Where an opponent/respondent withdraws his opposition during appeal proceedings, he ceases to be a party to the appeal proceedings as far as the substantive issues are concerned but retains his party status in so far as the question of apportionment of costs is still at issue (T 789/89, OJ 1994, 482).
In T 1059/98, with regard to the respondent’s request for apportionment of costs, the board stated that no request had been made before the opposition division for apportionment of the costs incurred in connection with the oral proceedings held before that department of first instance, and the opposition division had neither considered nor decided upon this matter in the decision under appeal. Art. 21(1) EPC 1973 (unchanged) provided that a board of appeal could only examine appeals from decisions of EPO departments of first instance. That clearly meant, in the circumstances of the case, that the board could not examine and decide upon a request for apportionment of costs incurred as a result of oral proceedings before the opposition division, if that request was presented for the first time before the board of appeal and thus no decision had been taken on it by the department of first instance. The board was therefore not competent to consider and decide upon the respondent’s request for apportionment of costs, which was rejected accordingly. As a matter of principle costs are not apportioned in transfer proceedings (J 38/92, OJ 1995, 8).