Key takeaways
Rule 265 RoP applies to applications for provisional measures, not only to “actions” in the narrow sense.
The Court of Appeal clarified that the term “action” (Klage) in Rule 265.1 RoP encompasses applications for provisional measures. The withdrawal mechanism is therefore not limited to main proceedings such as infringement or revocation actions but extends to interim relief proceedings as well.
Rule 265 RoP is applicable in appeal proceedings, allowing withdrawal before a final appellate decision is rendered.
The applicants withdrew their application for provisional measures during the pending appeal, before a final decision had been issued. The Court confirmed that Rule 265.1 RoP applies at the appeal stage, provided that the withdrawal is declared before the Court renders its final decision in the appeal proceedings.
Withdrawal must be permitted unless legitimate interests of the opposing party stand against it (Rule 265.1, sentence 3 RoP).
The Court found no legitimate interests of the appellants that would oppose the withdrawal. On the contrary, both parties confirmed they had reached an out-of-court settlement, and the appellants expressly consented to the withdrawal of the application for provisional measures.
No cost decision is required under Rule 265.2(c) RoP where the parties unanimously agree that each side bears its own costs.
Pursuant to Rule 265.2 RoP, the Court must ordinarily issue a cost decision upon permitting a withdrawal. However, where both parties unanimously agree that each bears its own costs and no inter-party reimbursement takes place, the Court held that a separate cost decision is unnecessary.
Division
Court of Appeal
UPC number
UPC_CFI_934/2025
Type of proceedings
Appeal in proceedings for provisional measures
Parties
Applicants / Respondents in Appeal: F. Hoffmann-La Roche AG, Roche Diabetes Care GmbH
vs.
Respondents / Appellants: A. Menarini Diagnostics S.r.l., Berlin-Chemie AG (trading as A. Menarini Diagnostics Deutschland), A. Menarini Diagnostics France SASU
Patent(s)
EP 1 962 668
Jurisdictions
UPC
Body of legislation / Rules
R. 265.1 RoP, R. 265.2 RoP, Art. 79 UPCA
