Key takeaways
As the Court previously held (cf. LD Düsseldorf – UPC_CFI_355/2025 and UPC_CFI_186/2025 – Fujifilm/Kodak), the focus of appropriateness “is primarily on the amount of costs incurred” and this from an ex ante perspective. When assessing these costs, elements which could be taken into consideration (having regard to the specifical circumstances of a withdrawal of an action) are inter alia: the value in dispute together with the ceiling, the significance of the case, the moment of withdrawal in the procedural agenda and the difficulty and complexity of the relevant legal and factual issues. Such an approach should indeed be favoured as it focuses on objectified elements without the necessity for the Court to assess more subjective elements which could interfere with the right of defence and, specifically, the freedom to strategically organize such defence. Assessing the “costs” as such from an “ex ante” starting point by applying objectified elements (dependent on the circumstances of the case) to assess “reasonability and proportionality” safeguards the access to the UPC (as a claimant or a defendant). (headnotes)
After the patent-in-suit has been revoked by the EPO, Claimant withdrew the infringement action with the consent of the three defendants according to R. 265 RoP two weeks before the Statement of Defense and Counterclaim for revocation were due. Thus, the Court still had to decide on cost reimbursement. It found that the Claimant was the “unsuccessful party” and that there were no “exceptional circumstances” pursuant to Art. 69(2) UPCA allowing for a deviation from the general principle that they had, thus, to reimburse the Defendants’ costs.
In the present case, the Court held that an amount of EUR 100,000 EUR was “reasonable and appropriate” for the representation of Defendants 1) and 2) taking into account (i) an average significance, (ii) relatively low difficulty and complexity of the relevant legal and factual issues, and (iii) a ceiling of 400,000 EUR based on the added value in dispute for the infringement action and counterclaim for revocation (although not filed yet). The requested expenses were granted additionally.
Division
Local Division Brussels
UPC number
UPC_CFI_415/2025
Type of proceedings
Decision on withdrawal and recoverable costs in main proceedings
Parties
CLAIMANT:
CooperSurgical, Inc.
DEFENDANTS:
- European Distribution Center Motiva BVBA
- Establishment Labs S.A.
- PulseLavage AB
Patent(s)
EP 3 302 292 B1
Body of legislation / Rules
Rule 265 RoP, Art. 69 UPCA
