Cost fixing 

The amount of costs to be paid under a decision apportioning them is fixed, on request, by the registry of the opposition division. The fixing of costs by the registry may be reviewed by a decision of the opposition division on a request filed within the period laid down in the Implementing Regulations (Art. 104(2) EPC 1973). Under the new R. 88(3) EPC this period amounts to one month after the communication on the fixing of costs. It also requires that the relevant request be filed in writing and state the reasons on which it is based. Moreover, the request is not deemed to be filed until the prescribed fee has been paid. The requirements are thus essentially the same as those for an appeal.

In T 668/99, the question was raised as to whether the prohibition of reformatio in peius also applies if the proceedings are not referred to a higher level of jurisdiction but are continued within the same level of jurisdiction, as is the case with a legal remedy against the fixing of the costs by the opposition division registry. The board recalled that an appeal and a request for an opposition division decision have far more similarities (suspensive and devolutive effect) than differences, and so the position of the sole requester is comparable to that of the sole appellant. The board was therefore satisfied that the prohibition of reformatio in peius also had to apply to a request under Art. 104(2), second sentence, EPC 1973.

Where the boards of appeal have to rule on the apportionment of costs, they have the power under Art. 104(1) and (2) and Art. 111(1) EPC 1973, and having due regard to Art. 113(1) EPC 1973, not only to apportion but also to fix the costs (see e.g. T 934/91, OJ 1994, 184). The scope of the apportionment depends on the specific circumstances of the individual case. The party to the proceedings who caused the additional costs may be ordered to pay all or a part of those costs (T 323/89, OJ 1992, 169).

Since the filing of new material after expiry of the opposition period may cause the other party to incur additional costs, the board, in T 117/86 (OJ 1989, 401), ordered that the appellant should pay the respondent 50% of his representative's costs in preparing and filing the response to the appeal (see also T 83/93).

In T 715/95, new documents were submitted only in the appeal proceedings. The delay was not justified. However, because the documents were so relevant the board admitted them and remitted the case to the department of first instance. But it also ordered the late-filing party to pay 50% of the cost of the oral proceedings, and 100% of that of the further proceedings at first instance. Similarly, in T 45/98, the appellant submitted new documents only in the appeal proceedings. They were admitted into the proceedings, but the case was not remitted to the department of first instance. With regard to the apportionment of costs, the board ordered that the appellant should pay 45% of the costs incurred by the opposing party's representative in the appeal proceedings.

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