b) Withdrawal of request for oral proceedings  

Nothing in the EPC prevents a party from withdrawing a request for oral proceedings at any stage of the procedure. The withdrawal of such a request is not culpable conduct as such and cannot be a factor in assessing whether reasons of equity exist in accordance with Art. 104(1) EPC 1973 (T 91/99).

In T 154/90 (OJ 1993, 505) the opponent had initially insisted on oral proceedings, although the opposition division did not consider that they were necessary. However, eight days before the arranged date the opponent informed the opposition division that they wished to cancel the oral proceedings. For reasons of internal organisation at the EPO, the opposition division did not receive this letter until after the date of the oral proceedings. The board of appeal ruled that eight days was a sufficient period of time for the oral proceedings to be cancelled, since no evaluation of new facts or arguments was needed (the case was different in T 10/82, OJ 1983, 407). Since the letter was received too late for purely internal reasons, the opponent was not at fault. It was not obliged to bear a part of the costs of the other party. A change of opinion regarding the necessity of oral proceedings could not be regarded as culpable conduct either (see also T 383/05).

In T 721/96 of 15 September 1998 date: 1998-09-15 the respondent informed the board and the appellant, four working days before the date set for oral proceedings, that it was abandoning the patent and no longer requesting oral proceedings. However, the declaration abandoning the patent was not completely unambiguous. The board refused the appellant's request that costs be awarded against the respondent; it had been clear that the oral proceedings would probably be superfluous and the appellant could have contacted the Registry of the board to find out about the course the proceedings would be taking.

In T 556/96 the appellant (patent proprietor) informed the EPO and the respondent early in the afternoon preceding the oral proceedings that it would not attend the oral proceedings. By that time, the respondent's representative had already departed for Munich. The board found that the appellant had communicated its intention not to attend the oral proceedings too late. The fact that the other party had also unconditionally requested oral proceedings was irrelevant; it too could have withdrawn the request, had it known in time that the appellant would not be attending. The board therefore ordered the appellant to pay the costs incurred by the respondent in preparing and attending the oral proceedings. See also T 939/21.

In T 490/05, on the day before oral proceedings, the appellant (patent proprietor) had withdrawn both its request for oral proceedings and its request to have the impugned decision set aside. Thus, even before oral proceedings it was clear that the impugned decision revoking the patent was sure to be made final. This gave the respondent the advantage of being able to focus its preparations for the oral proceedings on the proprietor's request for apportionment of costs. Thus, there were no reasons of equity for sharing the costs incurred by the opponent.

In T 258/13 the appellant withdrew its request for oral proceedings two days before the oral proceedings, which de facto amounted to only one day in view of the lateness in the day (5 p.m.). This was not notification in good time. Citing T 556/96, the board held that the appellant's request had to be treated as having been received so late that the respondent would already have had to be fully prepared, taking further into account the necessary travelling time during the day before the oral proceedings. An apportionment of costs in favour of the respondent was appropriate. However, for the oral proceedings only the presence of an authorised representative was necessary. The attendance or not of an accompanying person had no bearing on the conduct of the oral proceedings and was a matter of a deliberate choice by a party in which the other party did not need to be involved. Also to charge the appellant costs incurred by the accompanying person would contravene the principle of equity.

In T 169/14 the board held that there was an equitable obligation on every party summoned to oral proceedings to inform the EPO and the other party as soon as possible, once it had decided that it would not be attending or was withdrawing its request for them. Consequently, in cases where a party unduly delays its decision not to attend the oral proceedings, or the withdrawal of its request for them, or its communication of this to the board, an apportionment of costs in favour of the other party could be justified if the costs were directly caused by the fact that the notice was not filed in due time. In the case at issue, the appellant withdrew its request for oral proceedings only one week before the scheduled date. However, the appellant at the same time submitted observations in reply to the board's preliminary opinion and requested that they be taken into consideration by the board in reaching its decision. Had the board found the appellant's new submissions admissible and convincing, oral proceedings would have had to take place in view of the respondent's conditional request for them. Additionally, there were no facts on file indicating that the appellant had unduly delayed his notice or conducted himself in a clearly improper or irresponsible manner.