T 0972/13 - Costly absence
The decision is in German. Here first a short part is roughly translated into English.
The appellant does not turn up at oral proceedings, having announced before 'not to be represented'. Since this left open that the appellant would turn up himself, the responded had to prepare the case an turn up.This contributed to costs being awarded to the respondent.
The appellant (patentee) has appealed against the decision of the Opposition Division, in which the European patent no. 1,127,712 had been revoked. The appellant and respondent II (Opponent 2) had requested oral proceedings.In the summons to the oral proceedings, the Board gives its preliminary opinion that the appeal of appellant is inadmissible. According to the Board the appeal boils down to the mere assertion that the contested decision is not right, without mentioning the legal or factual reasons why the decision should be repealed. This leaves it to the Board and Respondent to speculate about the extent to which appellant could view the contested decision to be defective. This is exactly what the filing of a statement of grounds should prevent.By letter, the appellant had announced that they would not be represented at the oral proceedings. But such an announcement leaves open the question whether the complainant would not actually be present. In exercising its responsibility for the duty of care to their client, the representative of the Respondent II was therefore forced to prepare and be present at the hearing for the simple reason that the appellant might still turn up. Reasons for the Decision1. AdmissibilityThe appellant has not responded to the preliminary opinion of the Board an did not participate in the oral proceedings.Even after a review of their preliminary opinion, the Board sees no reason to deviate from it. Since the statement of grounds does not state the legal nor the factual grounds for overturning the decision, it does not meet the requirements of Rule 99 (2) EPC and is in accordance with Rule 101 (1) EPC to be rejected as inadmissible.2. Request for ReimbursementAccording to Article 104 (1) EPC in opposition proceedings each party bears their won costs. This is also true in opposition appeal proceedings. However, reimbursement would be considered, if it is equitable. This is the case where a party has been lacking in the necessary care and consideration in the process procedure and therefore has caused the other party costs that could easily have been avoided without compromising their own legal position.By letter dated 12 December 2014, the appellant complainant has announced that they would not be represented at the hearing on 28 January 2015. Such announcement leaves open, however, whether the complainant herself will actually be present or holds open still to appear.In exercising its responsibility for the duty of care to their client the representatives of the Respondent II have been thus forced to prepare and to be present at the hearing, to avoid the case that the appellant would still occur.To prevent this, the appellant would have been able to withdraw their request for oral proceedings without further ado, what she did not do. Thus, it is equitable that the appellant bears the costs of respondent II incurred by participating in the hearing (Article 104 (1) EPC).
For these reasons it is decided:1. The appeal is rejected as inadmissible.2. The appellant shall bear the costs incurred by Respondent II by participating in the oral proceedings of January 28, 2015
In the original German text:
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