b) Refusal of a request for apportionment of costs 

The non-appearance of a party generally does not adversely affect the party which did attend. As a rule, a different apportionment of costs will not be ordered if the parties which are affected have neither shown nor claimed that they incurred additional costs because the other party was not present (T 544/94, T 632/88 and T 507/89).

In T 591/88 both parties had requested that oral proceedings be held – both in fact filing an "unconditional" request. Without giving any advance notice, the respondent failed to appear. The appellant requested apportionment of costs on the grounds that the oral proceedings would not have been necessary had they known that the respondent would not be attending. The board rejected a different apportionment of costs because the appellant had made an "unconditional" request for oral proceedings, i.e. also covering the eventuality that the other party would not appear.

In T 275/89 (OJ 1992, 126) the appellant's representative filed a request that the oral proceedings scheduled for 3 May be adjourned, on the grounds that the appellant was unable to attend the oral proceedings owing to illness. The request was submitted so late, i.e. in the afternoon of 30 April, that it was impossible in view of the public holiday the following day to notify the respondent in time: they had already departed in the afternoon of 1 May. The request for adjournment was refused however and the oral proceedings took place without the appellant and his representative. The respondent requested a different apportionment of costs on the grounds that they would not have attended either had they known that the appellant would not be appearing. The board, however, took the view that the appellant could not be made responsible for the fact that the respondent had chosen to make an early start to the journey. Furthermore, the only matter of importance was whether the appellant's absence rendered the oral proceedings unnecessary. This question had to be answered in the negative. The request for costs was therefore rejected. The same decision was reached in T 1856/10, where a medically certified, sudden and unexpected illness of the appellant's representative had made him unable to attend. Here it was deemed acceptable that the board and the other party had not been informed of the first signs of his illness on the morning of the day before the oral proceedings, but only on the afternoon of that day, after he had seen a doctor.

In T 838/92 the appellant stayed away from the oral proceedings. The respondent requested a different apportionment of costs as it had appeared with seven witnesses. The board rejected the request because the witnesses had been summoned at the respondent's instigation in order to prove the prior uses alleged by the latter. There was therefore no reason to impose the costs on the appellant (see also T 273/07).

In T 91/99 the board stated that, where an appellant failed to give notice that they would not be attending the oral proceedings until two working days before the date set for the proceedings, this could constitute negligent or wilful conduct; however, in the case at issue, there was no culpable conduct on the part of the appellant which could justify an apportionment of costs under Art. 104(1) EPC 1973. See also T 105/14 for a case in which the party announced its non-attendance three days before the oral proceedings and a different apportionment was not ordered.

In T 849/95 the respondent submitted a request for apportionment of costs, as the appellant had not informed the EPO in good time that it would not be taking part in the oral proceedings. The board rejected the request, as the oral proceedings were arranged not only at the request of both parties, but also because the board itself required further airing of facts on the part of the respondent. The oral proceedings would not have been cancelled even if the appellant had informed the EPO in good time.

In T 435/02 both the appellant and the respondent had filed an auxiliary request for oral proceedings. When filing its request, the respondent had wanted to attend the oral proceedings to ensure that the board would not overturn the decision under appeal without it having had the opportunity to present its case orally. In response to the appellant's announcement not to attend the oral proceedings, the respondent gave notice that it too would not be attending and commented that it had wished to attend "merely to rebut statements/arguments made by the patentee during these proceedings". Although the board expressly informed the parties that the oral proceedings would be held as planned, the respondent failed to attend. The respondent requested a different apportionment of costs because the appellant had withdrawn its request for oral proceedings so late that the respondent had incurred costs which no longer could be recovered. The board refused the request on the grounds that, contrary to the respondent's claim, its failure to appear was not a response to the appellant's decision not to attend but the result of a choice not to take the opportunity which it had requested to present its case orally.

In T 65/05 the respondent (patent proprietor) maintained that, like the appellant, it would not have attended the oral proceedings if it had been informed in time that the appellant would not be appearing. In the case in point the board considered it doubtful that the oral proceedings could therefore have been waived or that the respondent would then at any rate not have attended them or would have withdrawn its request for oral proceedings. Both parties had submitted auxiliary requests for oral proceedings. The board had issued the summons without an opinion on the merits, in particular without any announcement or intimation that it was likely to decide in the respondent's favour. Therefore the respondent could not rely on a favourable decision purely on the basis of its written submissions if it stayed away from the oral proceedings. In these specific circumstances the board deemed it likely that the respondent would have appeared at the oral proceedings to defend its interests even if it had known that the appellant would not be there. The request for a different apportionment of costs was therefore rejected (see also T 190/06 and T 1361/09).

In T 1441/06 the respondent (patent proprietor) had not requested oral proceedings. It had not reacted to the board's communication, nor had it apparently had the intention to come or to notify the EPO of its intended absence at all. It was the appellant who had requested oral proceedings, albeit conditionally. In addition, the oral proceedings were not only arranged at the request of the appellant, but also because the board itself wished to be in a position to give a decision on the case. The oral proceedings would therefore not have been cancelled by the board even if the respondent had at an early time indicated that it would not attend. In these circumstances the board saw no sufficient reason to depart from the ordinary rule that each party bears its own costs.

In T 1071/06 the appellant had announced that it would not be attending the oral proceedings about a month after receiving the board's opinion with the summons. For the board, the time taken was entirely reasonable because appellants had to be afforded an opportunity to review their appeal's prospects of success in the light of the opinion accompanying the summons (among other things) before deciding how then to proceed.

According to the board in T 1079/07, to inform the EPO and any other party to the proceedings about the intention not to attend oral proceedings in due time is a matter of courtesy and respect rather than a procedural obligation to be met (see also T 69/07). In order to judge a late announcement of an intended absence from oral proceedings as constituting a "culpable action of an irresponsible or even malicious nature" (see T 937/04), strong supporting evidence for such an allegation would be required.

In T 383/13 the respondent (opponent) asked the board to order a different apportionment of costs under Art. 104(1) EPC, having attended oral proceedings for which the appellant had announced its absence by letter dated just two days beforehand. The board held that if a party was late in deciding not to attend oral proceedings or in informing the board or other party of that decision, awarding costs against it may well be justified – if those costs were directly caused by not letting them know in time. In exercising that discretionary power, the board should apply the standard laid down in T 1079/07. In the case in point, the oral proceedings were not superfluous: the board would not have cancelled them even if informed of the appellant's absence well in advance, because it wanted to be able to decide the case at the oral proceedings and close it on that date. That the board's provisional opinion had been in the respondent's favour was immaterial. Any diligent professional representative had a duty to attend oral proceedings even if the provisional opinion was in their favour and the other party did not come. The board concluded that it was not appropriate in the present case to order a different apportionment of costs under Art. 104(1) EPC.

In T 2377/13 the board decided that it was the standard laid down in T 383/13 and T 1079/07, not that used in T 937/04, which it had to apply in exercising its discretion as to whether to order a different apportionment of costs. In the case in hand, the board would certainly not have cancelled the oral proceedings, even if informed well in advance of the appellant's absence, because it had wanted to be able to decide on and close the case on the date scheduled for them, and so they had definitely not been superfluous.

In T 1389/13 both appellants had requested oral proceedings. Therefore, oral proceedings were scheduled and the board summoned the parties. The board considered that even if appellant II's (opponent’s) declaration that it would not attend oral proceedings amounted to a withdrawal of its request for oral proceedings, appellant I's (patent proprietor’s) request for oral proceedings remained pending, meaning that the oral proceedings had to be held. Therefore, appellant II's perceived misconduct in that it should have notified its intention not to attend the oral proceedings earlier than it did, was not the cause of appellant I attending the oral proceedings. Accordingly, the board held that appellant II's conduct was not disadvantageous for appellant I.

In T 938/14 both parties to the appeal proceedings had requested oral proceedings in case the board was not inclined to concur with their respective positions. From the board's communication it was clear that oral proceedings had to take place, as the appellant's request to maintain the patent based on its main request could not be granted. Even if the appellant's representative could have informed the respondent's representative, as a matter of professional courtesy, that it would not attend oral proceedings, the respondent could have made an attempt to ask for clarification. Thus, the board could not see any culpable actions of an irresponsible or even malicious nature in appellant's letter that would justify an apportionment of costs incurred by the respondent in attending the oral proceedings. See also T 256/16 and T 876/16.

In T 1699/15 the appellant (patent proprietor) gave notice that it would not attend the oral proceedings only at a late stage: the day before them, at 2 p.m. The board decided not to apportion costs differently, in particular because there was no objective evidence to suggest deliberately ambiguous or abusive conduct. The parties had been summoned to the oral proceedings not only because of the auxiliary request of the respondent (opponent) but also in view of the need to discuss, among other matters, the question of a technical prejudice, as indicated in the board's preliminary opinion. In the absence of any further information from the board to say that the oral proceedings might be cancelled following the appellant's notice of absence, the respondent had had no guarantee that the decision would be in its favour and so had had to prepare to defend its case.

In T 846/22 the appellant had only informed the board the day before the oral proceedings that it would not attend them. The respondent requested that its costs incurred for the preparation of the oral proceedings be charged to the appellant, since 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 noted that the oral proceedings would have had to take place anyway because of the respondent's auxiliary request for oral proceedings. Moreover, even when all parties attend oral proceedings, it is possible that not all the issues addressed in the preliminary opinion will be discussed. 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.