3. Expenses that may be apportioned

Under R. 88(1) EPC (R. 63(1) EPC 1973) the decision on apportionment of costs in opposition proceedings may consider only the expenses necessary to ensure proper protection of the rights involved (T 167/84, OJ 1987, 369; T 117/86, OJ 1989, 401; T 416/87, OJ 1990, 415; T 323/89, OJ 1992, 169). The order for apportionment of costs should be such as to compensate a party for the unnecessary costs it has incurred as the direct result of the other party's failure in its duty (T 952/00, T 212/07). On the costs of interpreting at oral proceedings, see chapter III.C.9.2.

According to Art. 16 RPBA (Art. 16 RPBA 2007), the costs ordered to be paid in appeal proceedings may be all or part of those incurred by the receiving party and may inter alia be expressed as a percentage or as a specific sum. In the latter event, the board's decision is a final decision for the purposes of Art. 104(3) EPC. The costs ordered may include costs charged to a party by its professional representative, costs incurred by a party itself whether or not acting through a professional representative, and the costs of witnesses or experts paid by a party but shall be limited to costs necessarily and reasonably incurred.

In T 964/21 the board emphasised that an order for the apportionment of costs under Art. 104 EPC must clearly state (at least) the kind of costs to be borne by the burdened party. In the case in hand the order of the opposition division was so vague that it was not possible to clearly determine (a) whether the representatives’ costs of preparing for the oral proceedings were included, and (b) whether the representatives’ costs for both oral proceedings were included. A ruling without any limitations of the specific costs to be borne in relation to the oral proceedings and without providing sound reasons would not comply with the right to be heard in oral proceedings as enshrined in the EPC. The decision on the apportionment of costs was therefore to be set aside.