T 0105/14 - The Netherlands as opponent

Key points

• In this opposition-appeal about a vaccine, the opponent is "The Kingdom of the Netherlands, represented by the Minister of Public Health, Welfare and Sports". Let me emphasize at the outset that it is otherwise a normal Notice of opposition with inventive step attacks and attacks based on insufficient disclosure competently drafted by a professional representative - no political statements or morality objections.
• The case is also interesting about a request for apportionment of costs. The OD had revoked the patent for lack of inventive step. The Board issues its negative preliminary opinion. The patentee then announces that it will not attend the oral proceedings with a letter dated 3 April but submitted only on 9 April, without a courtesy copy being sent to the opponent; the oral proceedings were scheduled for 12 April. The opponent requests apportionment of costs: " [Patentee's] behaviour not only offended against the basic rules of courtesy but also deprived the respondent of any possibility to timely cancel any hotel and flight reservations." 
• " The board agrees with the respondent on the relevance of the case law concerning the equitable obligation on every party summoned to oral proceedings to inform the board and, following the basic rules of courtesy, the other parties as soon as that party knows that it will not attend as summoned." 
• " The board agrees with the respondent that such basic rules [of courtesy] are much desirable and certainly contribute to a fair development of all proceedings, not only of appeal proceedings. Unfortunately, most of these rules are not enshrined or laid down in the Convention, let alone any means and measures to enforce them." (As a comment, in my view the term 'reasons of equity' in Article 104 EPC can very well encompass "basic rules of courtesy", especially if these rules "contribute to a fair development of all proceedings". Clearly, the term "equity" refers to unwritten rules, so the observation that "these rules are not enshrined or laid down in the Convention" seems beside the point ).
• " In the board's view, it is not possible to conclude with certainty from the date on the appellant's letter that a decision was already taken on this date. The board cannot be sure of the appellant's decision-taking process. Appellant's letter may have been drafted on 3 April but only approved at a later date." 
• " [T]he decision whether to attend or not oral proceedings as summoned depends always not only on the party itself but on the other parties' actions and behaviour. In the light thereof, it is always up to a party to find and decide on the most appropriate conditions and suitable ways for arranging its travel and accommodation reservations accordingly. " 

EPO T 0105/14 - link

Apportionment of costs

22. The board agrees with the respondent on the relevance of the case law concerning the equitable obligation on every party summoned to oral proceedings to inform the board and, following the basic rules of courtesy, the other parties as soon as that party knows that it will not attend as summoned. It is also established by this case law that, under certain circumstances and in certain cases, if a party fails to attend as summoned, an apportionment of costs in favour of another party, who has attended as summoned, may be justified for reasons of equity in accordance with Article 104(1) EPC (cf. "Case Law", supra, IV.C.6.2.2, 990). In support of its arguments regarding the request for apportionment of costs, the respondent has also mentioned decision T 280/15 of 7 March 2019, wherein the board competent in that case decided an apportionment of costs in favour of the party attending as summoned (cf. point XVII supra).

23. In the case underlying decision T 280/15, supra, the parties were informed of the board's provisional, non-binding opinion in a communication pursuant to Article 15(1) RPBA. The board competent in that case agreed with the decision of an opposition division to revoke the patent on the grounds of lack of inventive step. Since the appellant (patent proprietor) neither commented on the board's communication nor attended the oral proceedings, the board maintained its provisional, non-binding opinion and, accordingly, dismissed the appeal.

24. As regards the course of events, the board agrees that the general procedural situation underlying decision T 280/15, supra, closely resembles the situation of the present appeal proceedings, even though in said case the ground of opposition for revocation of the patent was a lack of inventive step (Article 56 EPC) and not insufficiency of disclosure (Article 83 EPC). However, the board does not consider this procedural similarity to be decisive for attaining a decision on the respondent's request for apportionment of costs. For such a decision, it is necessary for the board to first consider the behaviour of the party not attending as summoned, and then to assess whether, as a consequence of this behaviour, the other party attending as summoned has been put at a disadvantage.

25. According to decision T 280/15, supra, the appellant announced its non-attendance only on the eve (18:23 hours) of the oral proceedings scheduled for 7 March 2019. This particular situation cannot be compared with the situation of the present appeal proceedings in which the appellant informed the board of its non-attendance three days in advance of the oral proceedings. Therefore, the reasoning of decision T 280/15, supra, does not apply, in a straightforward manner and without further consideration by the board, to the present case.

26. For arriving at a decision, the board considers the following points to be of relevance:

26.1 The respondent referred to the basic rules of courtesy and to the case law referring to those rules for arguing that, in the present case, the appellant had to inform not only the board but also the respondent. The board agrees with the respondent that such basic rules are much desirable and certainly contribute to a fair development of all proceedings, not only of appeal proceedings. Unfortunately, most of these rules are not enshrined or laid down in the Convention, let alone any means and measures to enforce them. In the present case, the information provided to the board concerning the appellant's non-attendance at the oral proceedings was unfortunately not directly transmitted to the respondent. It was however immediately faxed by the board's registrar to the respondent - on the very same day on which this information was filed before the board, i.e. on 9 April 2019. Under cover of a letter dated 9 April 2019, i.e. on the same day the fax was sent by the board's registrar, the respondent filed a request for apportionment of costs in its favour. Thus, the respondent was made aware of the appellant's non-attendance on the same day as the board.

26.2 As regards the respondent's reference to the date printed on the appellant's letter, 3 April 2019, i.e. six days earlier than the date on which the appellant informed the board, this date is considered not to be relevant for the board to decide on the respondent's request for apportionment of costs. In the board's view, it is not possible to conclude with certainty from the date on the appellant's letter that a decision was already taken on this date. The board cannot be sure of the appellant's decision-taking process. Appellant's letter may have been drafted on 3 April but only approved at a later date. It is not for the board to assess whether or not the letter could have been filed at an earlier date; relevant for the board to attain a decision on the respondent's request is only the date on which the board and the respondent were actually informed of the appellant's decision not to attend as summoned, i.e. three days before the scheduled oral proceedings.

26.3 It is worth noting here that the board's provisional, non-binding opinion was in line with the decision taken by the opposition division at first instance and accordingly the board explicitly stated that "the appeal was likely to be dismissed" (cf. point 42 of the board's communication pursuant to Article 15(1) RPBA). Since the parties did not reply to the board's communication in substance and no further submissions were on file, it was reasonable to expect a decision of the board in line with its provisional, non-binding opinion. All the more so, since the fax sent on 9 April 2019 by the board's registrar to the respondent explicitly stated that the oral proceedings "are maintained and will take place only for procedural reasons to allow for a decision to be taken on that date" (underlined by the board). Any other decision could not have been expected, would take the parties by surprise and would be hard to reconcile with the requirements of the EPC and the Rules of Procedure of the Boards of Appeal.

26.4 As a matter of principle, each party must meet the costs it has incurred. It is up to a party to decide how and when to prepare its case, whether on the days shortly before the scheduled oral proceedings or at an earlier date so as to decide whether further submissions, the filing of further requests, etc. are necessary. There is always a chance that, as a result of this preparation and the filing of new submissions, requests, etc., the parties may have to react shortly before the oral proceedings. In the board's view, although not desirable and measures are in place to limit such late-filed submissions and requests, this situation is not unusual in both opposition and appeal proceedings before the EPO. Therefore, the decision whether to attend or not oral proceedings as summoned depends always not only on the party itself but on the other parties' actions and behaviour. In the light thereof, it is always up to a party to find and decide on the most appropriate conditions and suitable ways for arranging its travel and accommodation reservations accordingly. In the board's view, the filing of a notice of non-attendance three days in advance of the scheduled oral proceedings and the particular circumstances of the instant case are not comparable to the situation in the case underlying decision T 280/15 (less than one day), supra, and cannot justify an apportionment of costs.

27. Therefore, the respondent's request for apportionment of costs is rejected (Article 104(1) EPC, Article 16(1) RPBA).

Order

For these reasons it is decided that:

1. The appeal is dismissed.

2. The respondent's request for an apportionment of costs is rejected.