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"Further issues" [2020] ELECD 148; in Muller, O. Marcus; Mulder, A.M. Cees (eds), "Proceedings Before the European Patent Office" (Edward Elgar Publishing, 2020) 196

Book Title: Proceedings Before the European Patent Office

Editor(s): Müller, O. Marcus; Mulder, A.M. Cees

Publisher: Edward Elgar Publishing

Section: Chapter 6

Section Title: Further issues

Number of pages: 7

Abstract/Description:

Normally, each party bears the costs they have incurred. However, according to Article 104(1) and (2) EPC, the opposition division can order a different apportionment of costs and, on request, can fix the amount of costs. The decision on the apportionment of costs defines the type of costs to be paid by the other party while the decision fixing the amount of costs defines the actual amount. The decision on the apportionment of costs can be appealed, provided the apportionment of costs is not the sole subject of the appeal. Also, the decision fixing the amount of costs can be appealed provided the amount exceeds that of the fee for appeal. However, if no request for apportionment of costs has been made in first instance proceedings and no decision was taken on this issue, the apportionment of costs during first instance proceedings cannot be an issue in the grounds of appeal and the board cannot decide on any such issue (T 1059/98). Furthermore, if the opposition division has decided on the apportionment of costs, but in the notice of appeal this decision of the opposition division is not objected to, this part of the opposition division’s decision becomes final and a later extension of the appeal to this part, i.e. the apportionment of costs, is not admissible (T 448/09).