b) Different apportionment of costs ordered for reasons of equity 

In T 847/93 a new prior art document was cited in the statement of grounds. Mitigating circumstances for the late filing of new facts and evidence were put forward by the appellants and were held to be credible by the board. However, the board was also of the opinion that it was credible that the costs incurred by the respondents were higher as a result of the introduction of an entirely fresh case than if the facts and evidence had not been filed at a late stage. It therefore decided to order an apportionment of costs under Art. 104(1) EPC 1973 according to which the appellant had to pay the respondents 50% of the costs incurred by the respondents – after remittal to the department of first instance – in respect of the subsequent oral proceedings and the taking of evidence as well as in any subsequent appeal (on the issue of future costs, see chapter III.R.3.1.).

In T 1137/97 a belatedly submitted document was admitted into the proceedings and a different apportionment of costs was ordered. In determining the costs, the board itself, exercising its discretion under Art. 111(1) EPC 1973, awarded a fixed sum of EUR 2 500 to avoid the need for an exact investigation of the amount, which would have been more burdensome for the parties.

In T 937/00 the board found that all the requests presented by the appellant in writing in advance of the oral proceedings were clearly inadmissible and their filing could hardly be considered appropriate in the circumstances of the case, in which the appellant had chosen to file an exceptionally high number of independent claims in response to the notice of opposition. At the very end of the oral proceedings, he had even filed a third auxiliary request according to which all the claims which had been contested in the appeal procedure were simply abandoned. In these circumstances, the board felt compelled to admit the belated auxiliary request (had the board rejected the appellant's third auxiliary request, the appeal would have been dismissed and the revocation of the patent would have become final) and to remit the case to the department of first instance, none of the remaining claims having ever been considered by the opposition division. However, the board ordered for reasons of equity an apportionment of the costs of the oral proceedings.