3.2. Procedure for fixing costs

Under R. 88(2) EPC, costs will be fixed only at the 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(1) item 16 RFees has been paid.

In T 668/99 the question was raised as to whether the prohibition of reformatio in peius also applied if the proceedings were not referred to a higher level of jurisdiction but were continued within the same level of jurisdiction, as was 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; for a more recent decision in which the board fixed the amount of the costs, see T 1663/13). 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).

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