T 0626/15 - Withdrawal appeal and cost apportionment

Key points

• In this opposition appeal, only the patentee appealed. The patentee withdraws his appeal at the end of the oral proceedings. The opponent then requests a cost apportionment.
• The Board refuses the cost apportionment because the appellant is always entitled to withdraw his appeal. The Board, in translation: "This right,  which is based on the principle of the free disposal of the proceedings, can not be limited - even implicitly by the threat of apportionment of costs - simply because oral proceedings have been convened and the respondent concerned could not be informed in good time. Even participation in oral proceedings, convened by the Board for the purpose of deciding on the appeal, can not be held against a party, since it represents the last opportunity to defend his case in the last instance for all parties involved in the procedure."
• This is in line with established case law (e.g. T 490/05).

EPO T 0626/15 -  link


Machine translation from French

Reasons for the decision

1. The request is not granted for the reasons which follow.

2. By law, under Article 104 (1) EPC, each of the parties to the opposition proceedings is liable for the costs incurred by it, unless otherwise apportioned by the Board to the extent that the equity requires so.

3. In the present case the appellant, both in appealing the contested decision and in requesting oral proceedings, and even withdrawing her appeal during the oral procedure provided for, merely used procedural rights which were absolutely offered by the EPC.

4. The use of an absolute procedural right does not in principle constitute an abuse (T 674/03).

5. As regards the withdrawal of the appeal in particular, it should be noted that the appellant is always entitled to withdraw his appeal. This right, which is based on the principle of the free disposal of the proceedings, can not be limited - even implicitly by the threat of apportionment of costs - simply because oral proceedings have been convened and the respondent concerned could not be informed in good time. Even participation in oral proceedings, convened by the Board for the purpose of deciding on the appeal, can not be held against a party, since it represents the last opportunity to defend his case in the last instance for all parties involved in the procedure.

The costs attached to it may appear to be ex post facto preventable, but it may be assumed that the benefits to the respondent of withdrawing an action outweigh the costs it must bear. This is also true where the appeal remains pending only in form, because of the request for apportionment of costs (T 490/05).

6. Moreover, in the present case there is no evidence that the appellant acted in a faulty or reckless manner and with such lightness as to justify a different apportionment of costs, and especially that those whose repayment are solicited are those usually engaged by a party to defend its interests in the course of an appeal.

7. No abuse having been established, it follows that the request is unfounded and must therefore be rejected.

Device

For these reasons, it is decided as follows

1. The respondent's request for apportionment of costs is dismissed.

2. The appeal procedure is closed.