3.2. Future costs

The prevailing view in the boards' case law is that they should not take a decision on the apportionment of future costs because they have no basis for assessing them and lack jurisdiction (T 1178/04, OJ 2008, 80; T 1801/17). Thus the board in T 758/99 held that a decision on the apportionment of future costs in appeal proceedings caused by the late filing of documents depended on the course of the subsequent procedure and, in the absence of the necessary facts, could not be decided at that stage (see also T 133/06). For these reasons the board deviated from the judgment given in T 611/90, in which the legitimately incurred future costs had been apportioned. The board remitted the case to the department of first instance and ordered that a decision on the request for apportionment of costs would be taken at a later stage (see also T 223/95, T 758/99, T 890/00, T 48/00 and T 1182/01).

In T 369/08 the board also stated that it was apparent that the costs arising would depend on the course of the future proceedings. According to the board, the consequence of this is that the board necessarily is not in possession of the necessary facts to decide upon an apportionment of costs. Consequently the Board considered it appropriate not to make an open-ended order of apportionment of costs as had been done in the aforementioned T 611/90.

In T 1282/08 the board noted that in some cases some boards of appeal ordered the apportionment of future costs (see T 847/93, T 715/95) and the scenarios facing these other boards might have been different in the above-cited cases. Nevertheless, the board had difficulty seeing how it could make a decision, at the remittal stage, on the apportionment of costs yet to be incurred in subsequent proceedings, the course and outcome of which were still open to speculation. Hence the possible apportionment of opposition costs was to be decided by the opposition division at the end of the opposition proceedings.

In T 1777/15 the board held that it followed from the wording of the relevant provisions that a decision on an apportionment of costs could not be made in respect of future costs: Art. 104(1) EPC ("costs [a party] has incurred", emphasis by the board); R. 88(2) EPC, which requires submitting a bill of costs; and Art. 16(1) RPBA 2007.