3.1. Necessary expenses

Under R. 88(1), third sentence, EPC, the costs include the remuneration of the parties' representatives. In T 854/09 the board stated that the costs concerned were those reasonably incurred by the opponent. In this case, where an adjournment of oral proceedings was necessary, this included the expense of a single representative preparing for and attending the second proceedings, including travel and accommodation. Under R. 88(2), last sentence, EPC, costs may be fixed once they have been established as credible. The request must be accompanied by a bill of costs and supporting evidence. The board in T 475/07 exceptionally took the view that a detailed cost calculation was superfluous. It worked on the assumption that the representative could calculate on the basis of one day for preparing the additional oral proceedings and one day for attending them. The cost estimate of EUR 2 300 thus seemed credible.

In T 930/92 (OJ 1996, 191) the board held that, when fixing the amount of costs to be paid to a party, in addition to the remuneration of the professional representative of that party, the expenses incurred by an employee of that party in order to instruct the professional representative before and during oral proceedings could be taken into consideration under R. 63(1) EPC 1973, if such instruction was necessary to assure proper protection of the rights involved. In T 326/87 (OJ 1992, 522), all the costs incurred as a result of the remittal to the department of first instance were deemed to be apportionable.

In T 301/12 the board considered that, in the absence of exceptional circumstances, the attendance of accompanying persons in addition to a professional representative at the oral proceedings was as a rule a matter of choice, but not a necessity within the meaning of R. 88(1) EPC (T 258/13; see also T 930/92, where the presence of one member of the respondent's company was considered justified under the circumstances). In the case in hand, no such exceptional circumstances had arisen that would have justified the apportionment also comprising the costs of two experts accompanying the respondent's representative. In particular, based on the submissions on file, no expert discussion would have been expected.

In T 280/15 the appellant's notice of non-attendance at the oral proceedings had been received only the evening before them. In the board's view, the respondent had incurred costs that could have been avoided, such as travel and accommodation expenses and its professional representative's fee for 12 hours' preparation.