According to the Board, while the work on the admissibility of the appeal and claim requests probably became necessary due to the way Nutricia (the appellant in these proceedings) conducted itself in the course of the proceedings, that did not of itself justify an apportionment of costs for four reasons:
(1) the European Patent Convention did not compel a patent proprietor to take an active part in opposition proceedings; nor was a proprietor was not precluded from filing an appeal against an adverse decision of the Opposition Division;It was not therefore equitable to apportion costs.
(2) remaining inactive during opposition proceedings and filing new claim requests only at the appeal stage is not in itself an abuse of procedure that would justify an apportionment of costs;
(3) if Nutricia had participated actively in the opposition proceedings other issues might have arisen, which might have caused the opponents more work and expenses;
(4) Nutricia's timely withdrawal of its approval of the text had actually prevented the opponents incurring even more costs.
A cynic might take the view that, in light of items (3) and (4) above, Nutricia had done the opponents such a big favour that it might be fairer for them to pay Nutricia ...