11.6.10 Costs
In inter partes proceedings before the Boards of Appeal (and in proceedings before the Opposition divisions), the rule is that each party (i.e., the patent proprietor and the opponent) must bear the costs it incurs.135 An exception to this principle is if the Board, for reasons of equity, decides on a different apportionment of costs.136
Before the Boards of Appeal, the party seeking a different apportionment of costs must file a request.137 Eligible costs include those incurred because a party amended its appeal case at a late stage of the proceedings, because a party’s behavior interfered with the timely and efficient conduct of oral proceedings, or because there has been an abuse of procedure.138
The Board may decide on the apportionment of the costs by indicating a percentage of the costs to be borne or by expressing a specific sum.139 If the total is not already fixed by the Board in the order of the decision as a specific sum, it is subsequently determined in a separate procedure for fixing the costs.140 Eligible costs include, for example, those charged to a party by its professional representative and those of witnesses or experts paid by a party. However, such costs must always be necessarily and reasonably incurred.141
The final cost orders of the Boards of Appeal (or the EPO) are directly enforceable in the Contracting States. They are equivalent to final decisions given by a civil court of the state in which enforcement is to take place.142