3.4. Appeal against decision fixing amount of costs

According to R. 97(2) EPC, the decision fixing the amount of costs of opposition proceedings cannot be appealed unless the amount exceeds that of the fee for appeal.

In T 161/17 the appellant had contested only the opposition division's decision fixing costs and not its earlier interlocutory decision (on maintenance of the patent in amended form), in which it had also ordered a different apportionment of those costs. The board considered that this decision apportioning costs had become final. Since, in its appeal against the fixing of costs, the appellant had in fact objected only to their apportionment, the appeal had to be dismissed. It did not follow from R. 97(1) EPC that a decision apportioning costs was necessarily open to challenge together with the decision fixing them.