Key takeaways
The date of the withdrawal declaration alone determines which version of Rule 370.9 RoP applies — and therefore the entitlement to a fee refund. When the action originally commenced does not matter.
Rule 370.9 RoP provides the legal basis for reimbursement. Its reimbursement trigger attaches to the withdrawal of the action. The rule entered into force on 1 January 2026. The parties declared their withdrawals only after that date. The new version therefore applies. The earlier start of the proceedings as a whole makes no difference.
The Munich Local Division expressly rejected the diverging view of the Mannheim Local Division (UPC_CFI_1390/2025). Instead, it relied on four Court of Appeal decisions. These decisions hold that the filing date of the withdrawal request is decisive (CoA UPC_CoA_257/2025; UPC_CoA_895/2025; UPC_CoA_896/2025; UPC_CoA_15/2026). On this basis, the Division also saw no need to grant leave to appeal.
The Defendants/Counter-Claimants filed the withdrawal of the revocation counterclaim after the close of the written procedure. The new Rule 370.9 RoP provides no reimbursement trigger for a withdrawal before the close of the interim procedure. No refund was therefore available. The Defendants relied on the old version of the RoP, but that version did not apply.
Even where Rule 370.9(b) RoP formally allows a refund, the Court may deny reimbursement in exceptional cases. The Court exercises this discretion under Rule 370.9(e) RoP. It assesses the stage of the proceedings and the party’s conduct.
Rule 370.9(e) RoP lets the Court refuse a reimbursement that would otherwise fall due under (b) and (c). The Court must act in exceptional cases and must consider in particular the stage of the proceedings and the party’s procedural conduct.
An exceptional case exists in particular when the parties have exchanged all statutory written submissions, all pleading deadlines have lapsed, and only the formal closure of the written procedure remains. The rapporteur’s substantive preparation of the oral hearing must also be well advanced (cf. Hamburg Local Division, order of 28.05.2026, UPC_CFI_1125/2025 – Avago v. Renault). Rule 370.9(b) RoP aims to encourage the earliest possible withdrawal. Such an early withdrawal relieves the Court of the time-, personnel- and cost-intensive burden of hearing preparation.
Here, the written procedure was not yet formally closed. The Claimant’s own motion under Rule 36 RoP had delayed that closure. By that point, the technical judge had already delivered his preliminary opinion (Votum). The rapporteur had also completed his Votum, except for the final remarks on the antitrust objection. The hearing was less than a week away. A withdrawal on the last day of the written procedure could no longer relieve the Court as Rule 370.9(b) RoP intends. The Defendants confirm this point: they withdrew under identical circumstances just two working days later, yet the intervening formal closure of the written procedure left them with no refund.
Division
Local Division Munich
UPC number
UPC_CFI_293/2025 / UPC_CFI_868/2025
Type of proceedings
Infringement action / Counterclaim for revocation (withdrawal proceedings)
Parties
Claimant and Counter-Defendant: Nokia Technologies Oy
Defendants and Counter-Claimants: Acer, Inc. / Acer Computer GmbH / CPYou B.V.
Patent(s)
EP 2 661 892 (European Patent with Unitary Effect)
Jurisdictions
UPC
Body of legislation / Rules
Rule 265.1, 265.2, 370.9 RoP, Art. 69 UPCA
