Under R. 88(2) EPC, costs will be fixed by an apportionment decision under Art. 104(1) EPC only at the written request of the entitled party. The request must be filed with the registry of the opposition division and is not subject to a time limit. Under R. 88(3) EPC, a request for a decision by the opposition division on the amount fixed by the registry must be filed within one month of the communication on the fixing of costs. It must be filed in writing and state the grounds on which it is based. It is not deemed to be filed until the fee prescribed in Art. 2(16) RFees has been paid. Thus the requirements are largely the same as for appeals.
In T 668/99, the question was raised as to whether the prohibition of reformatio in peius also applies if the proceedings are not referred to a higher level of jurisdiction but are continued within the same level of jurisdiction, as is the case with a legal remedy against the fixing of the costs by the opposition division registry. The board recalled that an appeal and a request for an opposition division decision have far more similarities (suspensive and devolutive effect) than differences, and so the position of the sole requester is comparable to that of the sole appellant. The board was therefore satisfied that the prohibition of reformatio in peius also had to apply to a request under Art. 104(2), second sentence, EPC 1973.
Where the boards of appeal have to rule on the apportionment of costs, they have the power under Art. 104 EPC (Art. 111(1) EPC 1973) and having due regard to Art. 113(1) EPC 1973, not only to apportion but also to fix the costs (see e.g. T 934/91, OJ 1994, 184; T 323/89, OJ 1992, 169; T 930/92, OJ 1996, 191). The scope of the apportionment depends on the specific circumstances of the individual case. The party to the proceedings who caused the additional costs may be ordered to pay all or a part of those costs (T 323/89, OJ 1992, 169).
Since the filing of new material after expiry of the opposition period may cause the other party to incur additional costs, the board, in T 117/86 (OJ 1989, 401), ordered that the appellant should pay the respondent 50% of his representative's costs in preparing and filing the response to the appeal (see also T 83/93).
In T 715/95, new documents were submitted only in the appeal proceedings, and the delay was not justified. However, the board admitted the documents, remitted the case to the department of first instance and ordered the late-filing party to bear 50% of the cost of the oral proceedings. Similarly, in T 45/98, the appellant submitted new documents only in the appeal proceedings, and they were admitted. The case was not remitted to the department of first instance, but the appellant was ordered to pay 45% of the costs incurred in the appeal proceedings by the respondent's representative.