2.1. Late submission of documents and/or requests

Where facts and evidence supporting the opposition are submitted at a late stage in the proceedings and another party incurs considerably higher costs as a result, a different apportionment of the costs may be ordered for reasons of equity (see T 10/82, OJ 1983, 407; T 117/86, OJ 1989, 401; T 101/87, T 326/87, OJ 1992, 522; T 416/87, OJ 1990, 415; T 323/89, OJ 1992, 169; T 596/89, T 622/89, T 503/90, T 611/90, OJ 1993, 50; T 755/90, T 110/91, T 867/92, OJ 1995, 126; T 719/93 and T 970/93). The relevant factor in deciding on the costs is whether or not there are cogent reasons justifying the late submission; it is regarded as irrelevant whether the material in question has any bearing on the merits of the decision. However, it should be pointed out that, in several cases, requests for apportionment of costs have been refused, despite an unjustified delay, because there was no proof that higher costs had been incurred (see, for example, T 212/88, OJ 1992, 28; T 582/90, T 267/92, T 9/95 and T 207/03).

According to board of appeal case law, if a party introduces important facts or evidence at a late stage of the proceedings, without cogent reasons for the delay, this may be taken into account in the apportionment of costs (see T 117/86, OJ 1989, 401; T 326/87, OJ 1992, 522; T 97/90, T 611/90, OJ 1993, 50; T 847/93, T 1016/93, T 574/02, T 931/06, T 493/11). If the reasons for the late citing of a document do not point towards negligence or other circumstances that would amount to an abuse of procedure, there is no reason of equity which would justify an apportionment of costs in the other party's favour (T 1016/93).

Preparations for discussing the admission of late-filed documents into the proceedings during the opposition-appeal proceedings and, if they are admitted, preparations for discussing their relevance in respect of the patentability of the claimed subject-matter are part of the normal work that can be expected of any party and/or its representative (T 1848/12). See similarly T 101/17 for late-filed requests.

In T 1781/13 the board found that, since the EPC did not treat late-filed submissions as automatically inadmissible and the RPBA 2007 similarly did not treat amendments to a case this way, both instead leaving it to the boards to decide on admission at their discretion (Art. 114(2) EPC; Art. 12(4) and 13(1) RPBA 2007), it was clear that a party's amending its case could not be regarded as unfair per se and so held against it. Generally speaking, additional circumstances were therefore needed for equity to dictate ordering a party to pay the other's costs because it had amended its case at a late stage (see also T 467/15). In the case in hand, no such circumstances were apparent to the board and the party requesting that it be awarded costs, although bearing the burden of substantiating that request, had not made a case for them.