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on strike
Case law 14 jun 2024

Wat is de omvang van de zorgplicht bij het verdelen van de kosten?

--- Dit artikel is onderdeel van EPO Case Law newsletter en gaat verder in het Engels --- In T 1292/21, the Board discussed how far the duty of care reaches with regard to apportionment of costs and to which extent avoiding costs on the part of the other party falls under this duty of care. Firstly, The Board examines how this duty of care should be interpreted in relation to a travel to an oral hearing and whether a representative can be expected to keep themselves informed about any theoretically possible complications during such travel. Lastly, The Board examined whether the refusal to accept their offer to change the format of the hearing to a ViCo is a breach of this duty of care.


The Opposition Division (OD) rejected the opposition against a European patent no. 2 396 565, concluding that the subject matter was both new and involved an inventive step. Subsequently, an appeal was filled by the Opponent/Appellant (A) requesting that the decision under appeal be set aside and that the patent be revoked. The Proprietor/Respondent (R) requested that the patent be maintained on the basis of auxiliary request 3. Additionally, the P filled a request for apportionment of costs .

The circumstances for the request for apportionment

An in-person oral hearing was planned in Haar on February 23, 2024. However, the A’s representative’s flight to Munich, which was scheduled for the day before the hearing, was cancelled shortly before the departure due to a warning strike by the ground staff at the Munich airport.

The A’s representative informed the R’s representative via email that same evening and submitted a request for postponement of the hearing. The R’s representative had at this point already arrived in Munich.

A suggestion was made by the Board to hold the hearing via videoconference (ViCo), whereby the Board and the R would be sitting in separate rooms. The R’s representative agreed to this proposal but the A’s representative refused it, agreeing, however, to a shortened notice period. Consequently, the Board cancelled the oral hearing and postponed it to March 4, 2024.

Arguments for the request for apportionment

In response, the R requested apportionment of costs, arguing that due to the A's culpable actions, another oral hearing and therefore another journey were necessary. 

The R argued that the A’s representative should not have relied on the last opportunity to travel to Munich, since flight cancellations were not uncommon and, moreover, that the warning strike had already been announced. According to the R, this act of the A’s representative was careless as they appeared to have approvingly accepted the risk of missing the oral hearing in case this last flight would not depart.

The R further argued that the A's representative could have prevented the R of incurring additional costs by accepting the Board’s suggestion to hold the hearing via ViCo. According to R, the rejection caused the R to become a “victim” of the flight cancellation, who become forced to incur the costs for traveling to a second hearing as well as the associated hotel cost and the lost working days.

The A argued that their representative could not be accused of the above as they were a “victim” of an unforeseeable event. The A further argued that their representative, being from Luxembourg, had been unaware of the strike in Munich and could not be expected to know about it, as it was neither discussed in the Luxembourgish media or notified to them by the airline. They also noted that the representative had organized the journey to Munich on the day before the oral hearing, which reasonably should had been expected to provide enough reserve time, and that there still was a later flight on the same day, which had also gotten cancelled due to the strike. 

Regarding the possibility of ViCo that was offered by the Board, the A argued that an in-person hearing is a fundamental right, which should not be expected to be waived due to the representative having been confronted with an unforeseeable event.

Avoiding costs on the part of second party does not per se fall under the first party’s duty of care.

Reasoning of the Board (of Appeal)

To decide on the request for apportionment of costs, the Board first referred to the general principle as laid down in Art. 104(1) EPC, according to which each participant bears their own costs, but for reasons of equity, a different apportionment of costs may be imposed. They also referred to Art. 16 (1) sentence 2, lit. c) RPBA 2020, according to which costs associated with actions or omissions which impair the timely and efficient conduct of the oral hearing may be imposed on the participant who performed these acts. The Board also noted that, in principle, an apportionment of costs is only given if one of the parties involved can be accused of breaching the duty of care.

In view of the above, the Board evaluated that, in the case at hand, one aspect of this duty of care was organizing travel to a hearing, and that the A’s representative met this duty by planning the flight for the evening before the oral hearing and, contrary to the R’s allegations, by not taking the last flight on that day.

The Board then expressed their opinion that the duty of care did not stretch as far as requiring from the representative that they inform themselves in advance about all theoretically possible complications that may occur during such journey and attempt to avoid them in advance, which would be practically impossible. In line with this reasoning, the Board considered that the representative could have been expected to know about the strike at the Munich airport.

The Board recognised that, given the circumstances, the flight cancellation was an unforeseeable event for the A’s representative. Therefore, the Board decided that the A’s representative did not breach of the duty of care.

With regard to the alternative format of the hearing, the Board considered that the question at hand was not whether there was a right to an oral hearing in person, because such hearing had been organized but, due to the unforeseen circumstances, a change of its format to a ViCo was proposed on a short notice. This change in format was merely an offer by the Board and was also formulated as such. This offer was rejected by the A’s representative, thereby maintaining the original format, being an oral hearing in person.

The Board agreed that accepting this offer could have prevented the R from incurring further costs but they also recognised that avoiding costs on the part of second party does not per se fall under the first party’s duty of care. Therefore, rejecting the offer did not constitute a breach of this duty.

Decision of the Board of Appeal

The Board decided that none of the parties involved could be accused of breaching their duty of care, and therefore, everyone involved had to bear their own costs in accordance with the long-standing principle under Art. 104(1) EPC .

T 1292/21

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