a) Request for scheduling or postponement of oral proceedings 

On the basis of Art. 116(1) EPC 1973 any party has the exclusive right to request oral proceedings if it considers them to be necessary. The fact that one of the parties has to travel a longer distance than the other does not make the request for oral proceedings abusive. Furthermore, an objection of abuse based on the fact that the problems to be discussed in oral proceedings are simple ones and could easily be presented in writing cannot be sustained (T 79/88).

In T 297/91 it had, for a number of reasons, not been possible to decide all the issues during the first oral proceedings, with the result that the respondents had requested that oral proceedings be held for the second time. One of the respondents further requested that the costs incurred be borne by the appellant (patent proprietor). The board rejected the request for apportionment of costs because the further oral proceedings had become necessary for reasons beyond the patent proprietor's control.

In T 432/92 postponement of the oral proceedings was requested two days prior to the agreed date as the father of the respondent's representative had died on the previous day. The appellant requested a different apportionment of costs because its representative had already travelled from America to the EPO, thereby incurring unnecessary costs. It argued that the respondent could have been represented by someone else from their patent attorney's firm. The board refused the request because there had been no recognisably wrongful or irresponsible conduct on the part of the other party. The board was of the opinion in particular that the respondent could not be expected to be represented by a different patent attorney, who would have had to prepare two oral proceedings in one day (one for an ongoing parallel case) and to travel as well.

In T 42/99 appellant I announced, as early as one month prior to oral proceedings, that experts would attend those proceedings. Only shortly before the appointed date for the proceedings, appellant II submitted a request that statements by an expert be admitted at the oral proceedings. Appellant II also requested the postponement of the oral proceedings so that its expert would have enough time to prepare. The board decided to postpone the appointed date, however, in doing so, the board also regarded it as equitable to order a different apportionment of costs. In its reasons the board took the view that, although a reply from appellant II to the announcement by appellant I that experts would attend the oral proceedings would not have been possible within the time limit set by the board, a "response" to the aforementioned announcement should have followed immediately and not shortly before the appointed date for oral proceedings. At this late stage, it was plausible that the representative of appellant I had made arrangements for the trip to Munich and a hotel reservation, which could not be cancelled without a financial loss.

In T 99/05 the appellant submitted, 13 days before the oral proceedings, a new experimental report in view of which the respondent asked for postponement of the oral proceedings. The appellant strongly objected to such a postponement. Since, in the board's view, the question of postponing the oral proceedings was linked to the question of whether the late-filed experimental report should be introduced into the proceedings, the board deemed it appropriate to maintain the oral proceedings in order to hear the arguments of the parties concerning the relevance of the late-filed experimental report of the appellant, and hence to decide on the introduction or not of this report into the proceedings. However, the oral proceedings did not result in a final decision with regard to patentability and second oral proceedings were scheduled in order for the respondent to be allowed sufficient time to file counter-experiments. Whilst the late filing did not represent an abuse of proceedings, it was evident that the final outcome of the proceedings had been delayed. Therefore, the board found it appropriate for reasons of equity to order a different apportionment of costs. T 561/19 deals with a similar case.

In T 1771/08 the board held that an apportionment of costs under Art. 104(1) EPC could be ruled out from the outset for lack of equity if the representative of the party requesting a different apportionment owing to postponement of the oral proceedings had unreservedly agreed to their postponement.

In T 1292/21 the appellant's representative requested a postponement of the oral hearing due to the cancellation of his flight on the evening prior to the hearing because of a warning strike by ground staff at the destination airport. In response, the board proposed that the hearing be held by video conference. However, the appellant's representative did not agree to this proposal and the hearing was postponed to a later date. The board noted that its proposal to hold the hearing by videoconference was merely an offer. It was rejected and thus the format chosen by the board for this hearing, i.e. an oral hearing in person, was ultimately retained. The board was unable to identify any breach of his duty of care on the part of the appellant's representative and rejected the respondent's request for a different apportionment of costs.