Zusammenfassung von EPC2000 Art 104(1) für die Entscheidung T0967/18 vom 14.03.2023

See also abstract under Rule 142 EPC. In T 967/18 both parties had filed a request for a different apportionment of costs under Art. 104 EPC. Two weeks before the oral proceedings the respondent (opponent) had filed a request that the costs it incurred in preparing and filing the reply to the statement of grounds of appeal be borne in full by the appellant. The respondent had argued that the RPBA 2020 did not apply to requests for apportionment. Even if they applied, its request did not constitute an amendment of its case, so it was not subject to Art. 13(2) RPBA 2020. The board disagreed. There was no textual reason why the request for apportionment filed under Art. 16(1) RPBA 2020 should not be considered part of an appeal case. An appeal case was implicitly defined in the rules of procedure and included all "requests, facts, objections, arguments and evidence" presented by a party in the appeal proceedings (see Art. 12(3) RPBA 2020). The generic term "requests" covered requests on the costs of the proceedings. Therefore, adding such a request changed the appeal case. In the current case, the board had serious doubts as to whether the request could be admitted under Art. 13(2) RPBA 2020. The reasons as to why this request was filed only two weeks before the oral proceedings were only explained for the first time at the oral proceedings and were not convincing. The request could have been made earlier. However, in view of the lack of case law on the applicability of the RPBA 2020 to a request for apportionment indicated by the respondent, and as the request in question was not allowable, the board preferred to decide on the merits. Therefore, the request was admitted into the proceedings. From the exceptional nature of the cost apportionment provided under Art. 104(1) EPC and the reference to the abuse of procedure contained in Art. 16(1)(e) RPBA 2020, the board drew the following inference. More than just a mistake made by a party or a negligent delay in a procedural act which may occur in proceedings and which may lead to additional activities and costs was required for the order of a different apportionment. The abuse of procedure referred to such extreme situations where "the exercise of rights is predominantly intended to cause damage and other legitimate purposes take a back seat" (J 14/19). Therefore, while the board considered that negligent behaviour may also justify apportionment, the negligence must be serious enough to be considered equivalent to wilful misconduct. In the current case, the board concluded that the patent proprietor's conduct in failing to notify the EPO of its entry into voluntary administration was the result of an error of assessment. This error was not due to such a gross lack of care that could be considered equivalent to wilful misconduct. The appellant (patent proprietor) considered that it was an abuse of procedure of the respondent to file its request only two weeks before the oral proceedings which could have been filed earlier in the proceedings. The board agreed that the request of the respondent could and should have been filed earlier. However, in cases where there was an unjustified delay in filing a request, the question was whether this conduct resulted in additional costs that would not have been incurred if there had been no delay. In the current case, there was no evidence that this had occurred. Indeed, the appellant would have had to prepare the submissions filed on 10 March 2023 in any event. The board had no evidence that higher costs were incurred due to time pressure. Consequently, the requests of the respondent (opponent) and the appellant (patent proprietor) for a different apportionment of costs under Art. 104 EPC were refused.