Résumé de EPC2000 Art 104(1) pour la décision T1807/15 du 02.12.2022

See also abstract under Article 13(2) RPBA 2020. In T 1807/15 the respondent (patent proprietor) had requested that costs be apportioned to the appellant (opponent) because: (a) the appellant had not given advance notice to the respondent of its intention to request a referral to the Enlarged Board and (b) the appellant had made submissions E17-E11 after the first oral proceedings, in each case causing unnecessary work for the respondent's representative. In its Catchword the board stressed that the postponement of oral proceedings due to a request for a referral of a question of law to the Enlarged Board which was not announced in advance by the party making the request would normally not justify apportionment of costs. Since there was no guarantee that such a request would be successful, all parties would normally have to prepare for a discussion on the substance of the case irrespective of whether the request was announced in advance or not. The board further noted that it was a party's right to request a referral, and exercising this right was not a reason for a different apportionment of costs. The exercise of this right should in particular not be limited by the threat of apportionment of costs. Moreover, the board held that preparation for discussions on admission and also for a discussion as to the substance in the case that late submissions were taken into account was part of the normal preparatory work of each party. It was not apparent to the board, and it had not been substantiated by the respondent, that higher costs had been incurred by the timing of the submissions in question after the first summons, compared to the hypothetical situation that the appellant had filed them with the statement of grounds of appeal. Whether submissions were ultimately relevant for the decision would normally not play a role in deciding whether they justified a different apportionment of costs, unless maybe they were so irrelevant that they could be considered an abuse of the procedure. It was not apparent to the board, and had not been argued by the respondent, that this was the case here. Therefore, the request for apportionment of costs was refused.