In T 758/99, the board held that a decision on the apportionment of future costs in appeal proceedings caused by the late filing of documents depended on the course of the subsequent procedure and, in the absence of the necessary facts, could not be decided at that stage. The board refrained from such an ”open-ended” award of costs, agreeing with the appellant’s objection that the consequences of such an award were unpredictable (see also T 133/06). For these reasons the board deviated from the judgment given in T 611/90, in which the legitimately incurred future costs had been apportioned. The board remitted the case to the department of first instance and ordered that a decision on the request for apportionment of costs would be taken at a later stage.
In T 369/08 the board also stated that it is apparent that the costs arising will depend on the course of the future proceedings. According to the board, the consequence of this is that the board necessarily is not in possession of the necessary facts to decide upon an apportionment of costs. Consequently the Board considers it appropriate not to make an "open ended" order of apportionment of costs as was done in the aforementioned T 611/90 but instead to follow the approach adopted in T 758/99 and order that a decision on the request for apportionment of costs be taken at a later stage.
In T 1282/08 the board noted that in some cases some boards of appeal ordered the apportionment of future costs (see T 847/93, T 715/95) and the scenarios facing these other boards might have been different in the above-cited cases. Nevertheless, the board had difficulty seeing how it could make a decision, at the remittal stage, on the apportionment of costs yet to be incurred in subsequent proceedings, the course and outcome of which were still open to speculation. The board therefore found that in the present case the possible apportionment of opposition costs had to be decided by the opposition division at the end of the opposition proceedings on the basis of the then situation and any requests it received. Decisions T 223/95, T 758/99, T 890/00, T 1182/01 and T 48/00 as examples from the case law, document other situations where the boards left it to the opposition division to decide on the apportionment of costs incurred in subsequent first-instance proceedings.