T 0939/21 - Not showing up is costly

Key points

•  "Late in the afternoon preceding the oral proceedings [before the board], the appellant announced that it would not be attending the next day's oral proceedings."
• "The respondent, the board and the interpreters learned of this only on the morning of the oral proceedings. The appellant has provided no reasons why it could not declare its non-attendance earlier. The board cannot see any reason either. In fact, more than six months before the oral proceedings, the board had informed the parties of its preliminary opinion that the appeal was likely to be dismissed. About two months before the oral proceedings, the appellant had still indicated that it intended to attend them, and even requested interpreting services."

• "Generally, the boards consider it highly undesirable for summoned parties to announce too late that they will not be attending oral proceedings, in particular when no reasons for this step are given. Such conduct is inconsistent both with the responsible exercise of rights and with the basic rules of courtesy"

• "In the case at hand, the oral proceedings took place but contributed nothing new to the merits of the case." (the appeal was dismissed)

• "Had the appellant informed the respondent and the board earlier, the oral proceedings could have been avoided: even if, contrary to all expectations, the respondent had not withdrawn its request for oral proceedings in view of the board's preliminary opinion, the board could have applied the rationale of T 1467/11 (headnote and point 1 of the reasons) by deciding that the appeal be dismissed without deciding on its admissibility."

• "For reasons of equity, the board thus decides that the appellant bears the respondent's costs for the appearance at and the preparation of the oral proceedings of 28 April 2023 (Article 104(1) EPC, Article 16 RPBA 2020)."

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://new.epo.org/en/boards-of-appeal/decisions/t210939eu1.html

4. Apportionment of costs

4.1 According to Article 104(1) EPC, each party bears the costs it has incurred, unless a different apportionment of costs is decided for reasons of equity.

4.2 Late in the afternoon preceding the oral proceedings, the appellant announced that it would not be attending the next day's oral proceedings.

The respondent, the board and the interpreters learned of this only on the morning of the oral proceedings.

4.3 The appellant has provided no reasons why it could not declare its non-attendance earlier. The board cannot see any reason either.

In fact, more than six months before the oral proceedings, the board had informed the parties of its preliminary opinion that the appeal was likely to be dismissed.

About two months before the oral proceedings, the appellant had still indicated that it intended to attend them, and even requested interpreting services.

4.4 Generally, the boards consider it highly undesirable for summoned parties to announce too late that they will not be attending oral proceedings, in particular when no reasons for this step are given. Such conduct is inconsistent both with the responsible exercise of rights and with the basic rules of courtesy (Case Law of the Boards of Appeal, 10th edn., 2022, III.R.2.2.1).

4.5 In the case at hand, the oral proceedings took place but contributed nothing new to the merits of the case.

4.6 Had the appellant informed the respondent and the board earlier, the oral proceedings could have been avoided: even if, contrary to all expectations, the respondent had not withdrawn its request for oral proceedings in view of the board's preliminary opinion, the board could have applied the rationale of T 1467/11 (headnote and point 1 of the reasons) by deciding that the appeal be dismissed without deciding on its admissibility.

4.7 In the case at hand, significant efforts had been undertaken and costs incurred for the oral proceedings at the appeal stage:

- Interpreters had been ordered. They had familiarised themselves with the case and attended the oral proceedings.

- Both the respondent and the board had prepared and attendedthe oral proceedings.

For reasons of equity, the board thus decides that the appellant bears the respondent's costs for the appearance at and the preparation of the oral proceedings of 28 April 2023 (Article 104(1) EPC, Article 16 RPBA 2020).