a) Different apportionment of costs ordered 

In T 909/90 oral proceedings had been appointed at the appellants' request. Without giving the board or opponents any advance notice, the appellants did not attend the oral proceedings. Nor did they comment on the board's communication. For this reason in particular the oral proceedings contributed nothing new to the case. The board ordered the apportionment of costs without examining whether higher costs had been incurred as a result of the appellants' failure to appear. The appellants' failure to advise the board in time or at all that they would not be appearing at the oral proceedings was likewise the reason for ordering them to bear the costs in T 434/95, T 641/94 and T 123/05.

In T 937/04 the appellant (patent proprietor), by fax sent only to the EPO after its business hours on Friday, 17 February 2006, informed the board, without giving reasons, that it would not be attending the oral proceedings on 21 February 2006. The board stated that the appellant, in informing only the EPO and not the other parties, had failed to exercise all due care required and concluded that, for reasons of equity, an apportionment of costs should be accorded in favour of the respondent.

In T 91/99 the board stated that, where an appellant failed to give notice that he would not be attending the oral proceedings until two working days before the date set for the proceedings, this could constitute negligent or wilful conduct; however, in the case at issue, there was no culpable conduct on the part of the appellant which could justify an apportionment of costs under Art. 104(1) EPC 1973. In T 693/95 and T 338/90 costs were awarded because notice of the appellant's absence had been given, in the former case, only an hour before the oral proceedings and, in the latter, at the time when the oral proceedings were due to start.

In T 53/06 the appellant requested oral proceedings "in case the board considers not to set the decision aside". As soon as it received the board's summons to oral proceedings and communication, the appellant knew not only that oral proceedings would take place but also that the condition it had itself placed on its own request for oral proceedings had been fulfilled, since the communication clearly indicated that the board's provisional opinion was that the decision under appeal would not be set aside. However, the appellant neither replied to the communication nor indicated at all, let alone as soon as it knew, that it would not attend oral proceedings. Since the respondent had, in the absence of any submissions from the appellant additional to those in the grounds of appeal, nothing to add to its own case in its reply to the grounds of appeal, the oral proceedings proved to be unnecessary. In those circumstances, an apportionment of costs in favour of the respondent was held to be appropriate under Art. 16(1)(c) RPBA (2007) as well as under Art. 16(1)(e) RPBA (2007). See also T 212/07, T 2179/09, T 258/13.