2. Equity of a different apportionment of costs – case groups

There is no definition of equity in the EPC. The boards of appeal therefore had to develop the criteria determining whether costs were to be apportioned on a case-by-case basis. In a number of decisions it has generally been stated that apportionment of costs is justified if the conduct of one party is not in keeping with the care required, that is if costs arise from culpable actions of an irresponsible or even malicious nature (see, for example, T 765/89, T 26/92, T 432/92 and T 256/16).

In T 1714/14 the board held that "reasons of equity" exist when a party's costs arise from culpable actions of another party, or even abusive behaviour. If, however, there was nothing to indicate negligence, wrongdoing, or an abuse of procedure, a different apportionment of costs was not justified.

From the exceptional nature of the cost apportionment provided under Art. 104(1) EPC and the reference to abuse of procedure contained in Art. 16(1)(e) RPBA, the board concluded in T 967/18 that 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. 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 had to be serious enough to be considered equivalent to wilful misconduct.

Requests for a different apportionment of costs are often filed in various scenarios in which costs are incurred due to:

- late submission of documents and/or requests (see in this chapter III.R.2.1.);

- acts or omissions prejudicing the timely and efficient conduct of oral proceedings (see in this chapter III.R.2.2.);

- filing of opposition or appeal (see in this chapter III.R.2.3.);

- withdrawal of opposition or appeal at short notice (see in this chapter III.R.2.4.);

- other cases (see in this chapter III.R.2.5.).