4.1. Filing a request for apportionment of costs

The practice before the boards of appeal is that all requests by parties, including any requests as to costs, should be made before any decision is announced in oral proceedings, as the decision on apportionment is part of the final decision. See T 1556/14 of 15 October 2020 date: 2020-10-15, where the board held that R. 88(1) EPC implied that the request for apportionment was submitted before the decision of the opposition division was taken. In T 212/88 (OJ 1992, 28), though, by way of exception the request for apportionment was also considered later, because at that time this practice had not been published and the parties were therefore unaware of it.

Where a request for apportionment cannot be submitted before termination of the proceedings, for example when the only appeal is withdrawn and the timing of that withdrawal or other related circumstances are the alleged grounds for requesting apportionment of costs, the request must be accepted as being admissible despite being submitted after termination of the proceedings (T 1556/14 date: 2020-10-15). However, in the case in hand the board was not convinced that the appellant had been unable to file a request for apportionment of costs prior to the termination of the proceedings.

The decision on costs may also be taken in isolation if the opposition and the appeal have been withdrawn (T 85/84, T 765/89).

There is no basis for deciding on a different apportionment of costs if the party which would benefit from the decision did not request apportionment and even made it known that it would not enforce any such decision (T 408/91, T 125/93).

A request for apportionment of costs submitted by the respondent merely as a party to the appeal proceedings as of right (Art. 107, second sentence, EPC 1973) must be rejected as inadmissible as it would otherwise contravene the principle of equal treatment (T 753/92, T 514/01, T 1237/05).

In several decisions, the boards of appeal have stressed the importance of submitting evidence to support a request for a different apportionment of costs (e.g. T 49/86, T 193/87, T 212/88, OJ 1992, 28; T 404/89, T 523/89, T 705/90, T 776/90, T 306/93). Thus in T 896/92 the request for a different apportionment of costs was rejected for lack of substantiation and because of the absence of obvious reasons. In T 193/87 (OJ 1993, 207) the board likewise refused to apportion costs because the respondents had provided no evidence and it was unable to see any reasons of equity that might have justified such an apportionment.