2.2.1 Failure of a party to appear at oral proceedings
Overview
2.2.1 Failure of a party to appear at oral proceedings
The boards consider it highly undesirable for summoned parties to announce too late, unclearly or not at all that they will not be attending. Such conduct is inconsistent both with the responsible exercise of rights and with the basic rules of courtesy (see for example T 434/95, T 65/05).
There is an equitable obligation on every party summoned to oral proceedings to inform the EPO as soon as he knows that he will not be attending as summoned (T 212/07), regardless of whether he himself or another party requested the oral proceedings and of whether or not a communication accompanied the summons to oral proceedings. If a party who has been summoned to oral proceedings fails to attend as summoned without notifying the EPO in advance, an apportionment of costs in favour of another party, who has attended as summoned, may be justified for reasons of equity in accordance with Art. 104(1) EPC 1973 (established case law, see for example T 930/92, OJ 1996, 191; T 123/05, T 972/13). As one party's non-attendance does not automatically put the other party at a disadvantage (T 273/07, T 544/94 and T 507/89), one essential question here is whether the appellant's failure to attend rendered the oral proceedings unnecessary (T 10/82, OJ 1983, 407; T 275/89, OJ 1992, 126).
- T 846/22
Abstract
In T 846/22 the respondent (patent proprietor) had requested that its costs from the first and second instance proceedings should be charged to the appellant (opponent). The respondent argued that these costs were incurred through an abuse of procedure by the appellant, namely acting throughout the opposition and appeal proceedings whilst being a dormant company with the aim of circumventing possible remedies given to the parties by Art. 104 EPC. The board noted that acting on behalf of a third party could not be seen as a circumvention of the law unless further circumstances were involved (G 3/97, OJ 1999, 245, point 3.2 of the Reasons) and there was no requirement under the EPC that a party be equipped with sufficient financial means to comply with a merely hypothetical costs order. Moreover, the EPC did not offer the patent proprietor any kind of guarantee that an opponent would be able in fact to reimburse costs awarded against him (G 3/97, point 3.2.6 of the Reasons). Hence, the board concluded that there was no abuse of procedure in this respect and refused this request for apportionment of costs.
The respondent had further requested that its costs incurred for the preparation of the oral proceedings be charged to the appellant, who had only informed the board the day before the oral proceedings that it would not attend them. In particular, the respondent argued that, had it been informed, the costs for the preparation of at least part of the oral proceedings would not have been incurred, in view of the board's preliminary opinion, which was favourable to the respondent in respect of a number of issues. The board stated that the oral proceedings would have had to have taken place anyway. This was because of the respondent's auxiliary request for oral proceedings. Hence, in contrast to the case underlying T 475/07, the appellant's conduct had had no impact on the necessity of holding oral proceedings. The board noted that even when all parties attended oral proceedings, it was possible that not all the issues addressed in the preliminary opinion would be discussed, since for some of them the parties could refer to their written submissions. The board also pointed out that the respondent could not be sure that the preliminary opinion would be maintained in the oral proceedings. Deciding not to be prepared for an issue which could potentially be discussed at the oral proceedings, irrespective of the board's preliminary view on the issue, always involves some risk and it is the parties' responsibility to decide what to prepare for. In any case, it could not be asserted beforehand that the board's preliminary opinion would have rendered the oral proceedings unnecessary. For these reasons, the board did not consider it equitable to order the apportionment of costs in favour of the respondent. Hence, this request was refused too.