Abstract on EPC2000 Art 104(1) for the decision T0561/19 of 08.11.2022

In T 561/19 the board confirmed the opposition division's decision to award a different apportionment of costs pursuant to Art. 104(1) EPC. At the first oral proceedings before the opposition division, the appellant (opponent) had filed experimental evidence (D15), which was allegedly very relevant for the issue of sufficiency of disclosure. The opposition division admitted D15 into the proceedings before adjourning the oral proceedings. In its decision, the opposition division ordered that the costs incurred as a result of the second oral proceedings had to be borne by the appellant. The appellant argued that a different apportionment of costs could not be granted merely because a further oral proceedings was needed. Only a party that had been negligent or willing to harm the other should bear the other party's costs. There was no negligence or will to harm with the filing of D15. The board held, however, that negligence, will to harm or abuse of procedure was not a prerequisite for a different apportionment of costs. It sufficed that there was no good justification for the late filing and that the late filing was the cause of both the adjournment of the oral proceedings and extra costs for the other party. If a party chose to file evidence so extremely late, the risk was that said evidence would not be admitted into the proceedings or that, if the evidence was admitted, the party would have to bear costs incurred as a result by the other party. In the present case, it was not disputed that the oral proceedings had been adjourned solely due to the filing and admission of D15 during the first oral proceedings. The appellant provided no good reason for filing this evidence at that point in time. Hence, the board concluded that the additional costs caused by the adjournment had to be borne by the party causing it, so the opposition division's decision in this respect was correct.