2.1.1 Late submission was unjustified

In T 101/17 the board refused the respondent's (opponent) request for a different apportionment of costs. The respondent argued that the filing of auxiliary requests at the appeal stage – rather than at the stage of opposition – amounted to an abuse of procedure. Although the auxiliary requests were not admitted, it had nonetheless been necessary to prepare for the scenario that they would be admitted and to subsequently address them content-wise. The board considered that the case law of the boards of appeal did not support a different apportionment of costs. The board concurred with the approach taken in T 1848/12, namely that preparations for discussing the admission of late-filed documents were part of the normal work that can be expected of a party, as an application of the principle that each party bears its own costs. The board further observed that in order to establish any causal link between the respondent's expenses and the appellant's behaviour, the respondent would have to show that it was particularly the belated filing of requests that caused the expense rather than the filing of requests as such. The board failed to see what additional expenses the respondent had incurred by preparing for a discussion of these requests at the stage of appeal rather than at the stage of opposition, other than for the additional discussion on the admissibility of these requests. As a discussion on the admissibility of requests was a not uncommon occurrence in proceedings in general, this could hardly be credited with separately identifiable expenses. It was at least at this hurdle that the respondent's case failed and the request for a different apportionment of costs had to be refused. See also Chapter V.A.6.3. "Article 12(4) RPBA 2007".