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. See also T 301/12.
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 280/15 the board held that since the appellant's notice of non-attendance at the oral proceedings had been received only the evening before them, the respondent had incurred costs which could have been avoided had the appellant conducted itself properly and observed the basic rules of courtesy. Moreover, the appellant's conduct, and particularly the fact that it had not informed the respondent directly, had prevented the respondent from limiting, if not avoiding, further costs for attending the oral proceedings. But see also T 105/14, in which the board distinguishes the facts from those in T 280/15, in particular in that the appellant had informed the board of its non-attendance three days in advance of the oral proceedings.
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.
In T 301/12, in reply to the board's communication, the appellant had announced in writing that it would "probably not be represented at the oral proceedings", while explicitly upholding its request for oral proceedings, and without providing further arguments on the substance. The board held that this submission had been unclear and left the respondent in the dark as to the appellant's true intentions. Therefore, the respondent had to properly prepare for the case on the basis that the appellant would be attending the oral proceedings. The appellant's failure to clearly state its intentions on its attendance at the oral proceedings was a culpable failure in its duties.
In T 2350/15 the appellant (opponent) informed the board that it would not be attending the hearing, but that this did not mean that it was withdrawing its appeal or its request for oral proceedings. The board considered that since it had intended to maintain the patent according to the main request of the patent proprietor, the oral proceedings (in the absence of the opponent) served no purpose and could have been cancelled, had it not been for the opponent's request. Indeed, the patent proprietor was not adversely affected by the decision to maintain the patent on the basis of its main request, and would thus not have needed any oral proceedings to defend its case. By maintaining its request for oral proceedings, the opponent thus not only obliged the board to hold them but also obliged the patent proprietor to come to the oral proceedings and to prepare for them. The board found it equitable that the appellant bore the costs (for preparation, travel and presence) for the oral proceedings before the board.