Nothing in the EPC prevents a party from withdrawing a request for oral proceedings at any stage of the procedure. The withdrawal of such a request is not culpable conduct as such and cannot be a factor in assessing whether reasons of equity exist in accordance with Art. 104(1) EPC 1973 (T 91/99).

In T 712/94 the board allowed the appellant (opponent) to introduce facts and evidence on alleged prior use at the appeal stage, whilst refusing the respondent's (patentee's) request for apportionment of costs. The patentee had been made aware of the prior-use documents during negotiations conducted well before the first-instance decision was taken; so they had not taken him by surprise when submitted after the failure of those negotiations.