UPC Unfiltered, by Willem Hoyng – UPC decisions week 15, 2026

24 March 2026 (late published)
Local Division Milan, Sigma v AGA

UPC_CFI_2052/2025

Alignment of dates

The Judge-Rapporteur (“JR”)

After the parties indicated their agreement, the JR aligns the dates for the Statement of Defence and possible Counterclaim for Revocation.

Comment

1. Sensible and by now customary decision (if parties agree).
2. I wonder why the JR is stubborn in not mentioning the names of the representatives, contrary to all Local Divisions and the Court of Appeal. I do not know if this is an Italian habit, but it would be good if the JR adopts the UPC custom.

2 April 2026 (late published)
Local Division Munich, biolitec v Light Guide Optics

UPC_CFI_714/2024; UPC_CFI_155/2025 

Stay / Court appointed experts

Facts

1. This concerns infringement proceedings with respect to Unitary Patent EP 3 685 783
2. On 28 October 2025, the defendants asked for a stay of the proceedings, and to cancel the dates for the interim conference and the oral hearing (set for 17/18 December 2025).
3. The claimant did not agree.
4. The interim conference took place on 21 November 2025. During that conference the claimant announced to file further auxiliary requests in the light of the preliminary opinion issued by the Opposition Division (“OD”). Defendants objected against the late filing.
5. It was agreed that claimant would file the new auxiliary requests as soon as possible, and that the defendant should react prior to the oral hearing. During that hearing, the Court should decide if the auxiliary requests would be allowed. The oral hearing took place on 17 December 2025.
6. On 3 February 2026 the OD revoked the patent.
7. Parties reacted to this decision in writing.

The Court

1. The Court agrees with the OD that the granted patent is not valid.
2. However, the Court is of the opinion that the auxiliary request (filed after the preliminary opinion of the OD) renders the patent valid.
3. Thet Court is of the opinion that this auxiliary request should be allowed, as the preliminary opinion of the OD was not known at the time of the defence against the counterclaim for revocation.
4. R. 295(a) RoP which gives the Court the possibility to stay proceedings, should not be applied in this case, as it is written to avoid inconsistent decisions, for example because different auxiliary requests in opposition and in the litigation before the UPC have been filed. There was no reason for a stay on that ground in this case, as the oral hearing had taken place before the oral hearing in the OD.
5. After the oral hearing the Court gave the parties the possibility to comment on the decision of the OD.
6. The Court cannot decide the infringement question without the advice of a court-appointed expert.
7. The Parties are invited to suggest the names of court-appointed experts before 17 April 2026.

Comment

1. Would it not have been better to postpone the oral hearing with 6 weeks so that the oral hearing could take place with the knowledge of the result of the Opposition Division? That would have been fully in line with R. 295(a) RoP.
2. The technical question which the Court wants to raise to the court-appointed expert should have been clear after the written proceedings and could have been resolved before the oral hearing. The idea of the oral hearing before the UPC is that such a  hearing leads to a final decision. The interim phase is the phase during which the case should be made ready for such final oral argument, and during that phase, a court-appointed expert could have given its opinion.
3. For an overloaded Division as the Munich Local Division it seems not possible to achieve this, because it requires a rather early interim conference, which leaves a couple of months before the oral hearing. For an overloaded Division it is of course also far more difficult to postpone an oral argument, because the docket is filled with hearings.
4. It would already an improvement to appoint a less busy judge (the non-German judge) as the Judge-Rapporteur. It would also add to take away the impression (which I have heard during some conferences) that the German Divisions are in fact nothing else than the old German courts in another (not so new) coat! A strong-minded foreign JR may change that impression, as the Dutch judge Mr Brinkman showed recently, when he filed a dissenting opinion.

7 April 2026
Local Division Lisbon, Transsion v Ericsson

UPC_CFI_850/2026 

Alignment of deadlines

Facts

1. Transsion sued four Ericsson companies for infringement.
2. Three out of four companies have already been served.
3. The parties agreed that the representatives for the three served companies will also file an appearance for the fourth company, and that the term for preliminary objections will be 1 May 2026 and for defence and counterclaim 1 July 2026.

The JR

The JR granted the request.

Comment

A sensible agreement between the parties which avoids further delays with respect to the party who has not yet been served and aligns the dates for the written pleadings.

7 April 2026
Local Division Düsseldorf, Oppo v KPN

UPC_CFI_249/2026

Change of language

Facts

1. On 23 January 2026, KPN sued Oppo for infringement in the German language.
2. On 20 March 2026, the defendants requested the President of the Court of First Instance to change the language to English and for the claimant to provide a translation of the Statement of Claim within two weeks.
3. KPN agreed but wanted three weeks for providing the translation.

The President of the Court of First Instance

1. Changed the language of proceedings to English.
2. Ordered the claimant to provide a translation in 2.5 weeks.

Comment

1. Why did KPN (a Dutch company) file in the busy Düsseldorf Division in German?
2. The parties agreed to change the language. This is understandable as KPN probably realized that the President of the Court of First Instance would change the language anyway, in view of the case law on the subject.
3. As the parties agreed, there was no necessity to file a request with the President of the Court of First Instance. R. 321 RoP states that if parties agree, they can simply ask the Court (here, the Local Division Düsseldorf) to change the language. Perhaps the defendant did not want to run the risk that the very busy Düsseldorf Division would refuse because it considers working in German easier?
4. If one party wants 3 weeks and the other 2 weeks for a translation, what do you think the judge is going to decide?

7 April 2026
Local Division Hamburg, Dyson v Dreame

UPC_CFI_2255/2025

International Jurisdiction

Facts

1. (Second) preliminary injunction (“PI”) proceedings with respect to EP 3 119 235 relating to a hair styler.
2. Defendant 1 is Dreame Hong Kong
   Defendant 2 is Dreame Sweden
   Defendant 3 is Dreame Netherlands
   Defendant 4 is the German company Teqphone
3. Defendant 5 is the UK company Cellcom
4. Defendant 3 acts as EU Representative. It is disputed between the parties whether this also includes the UK more especially Northern Ireland.
5. Dyson requests a preliminary injunction to be imposed on defendants 1-4 for the UPC territory and Spain, and on defendants 3 and 5 for the UK.
6. Dyson furthermore requests a preliminary injunction to be imposed on defendant 3 for acting as an intermediary for the UK. 

The Court

International Jurisdiction:

UPC territory

1. As defendant 2, 3 and 4 are domiciled in the UPC territory, the Court has international jurisdiction on the basis of Art. 4 Brussels Ibis Regulation (“BR”), also with respect to infringements in non-UPC countries.
2. As to defendant 1, which operates country specific websites, the Court has international jurisdiction on the basis of Art. 7(2) BR.

Spain

1. As to defendant 3, it is not necessary to look into the plausibility of the infringement in Spain specifically, because international jurisdiction is given on the basis of Art. 4 BR (CoA, 6 March 2025, Dyson v. Dreame, UPC_CoA_789/2025 and UPC_CoA_813/2025).
2. As to defendant 1, international jurisdiction for Spain cannot be based on Art. 7(2) BR, but only on Art. 8 BR as a co-defendant of defendant 3. There is a close connection, in the sense of possibly irreconcilable judgments, with defendant 3 importing to Spain and defendant 1 operating a website offering products in Spain. Both are part of the same group of companies.

The UK

1. The questions that the Court of Appeal referred to the Court of Justice in its 6 March 2025 order (CoA, 6 March 2025, Dyson v. Dreame, UPC_CoA_789/2025 and UPC_CoA_813/2025) are not relevant because they relate to whether an intermediary can be an anchor defendant. In this case, defendant 3 is (also) an importer.
2. 1.   Defendant 3 can be sued for infringement in the UK on the basis of Art. 4 BR but cannot be an anchor defendant for defendant 5 with respect to the territory of the UK. 
   2.   Defendant 3 does not import in the UK but acts as EU representative in Northern Ireland. Certain EU rules are still applicable in Northern Ireland to ensure free trade with Ireland.
   3.   Art. 8(1) BR is not applicable because it is not ‘foreseeable’ that both companies (defendants 3 and 5) could be sued before the same EU court (a requirement for the applicability of Art. 8(1) - see CJEU, Judgment of 1 December 2011, C-145/10, Painer/Standard VerlagsGmbH, ECLI:EU:C:2011:798, para. 81). The Court considers it not being foreseeable that the limited task of EU representative could lead to the non-UPC importer to the UK (defendant 5) being sued in the EU. 
   4.   Moreover, the Court of Appeal has already questioned if an EU representative can be seen as an intermediary (see the referral to the Court of Justice mentioned hereabove under “e”).
   5.   Art. 35 BR can also not create international jurisdiction for defendant 5 as there has to be a real connection between the Court and the measures sought.

Competence
The Court states that as far as it has international jurisdiction, it has competence in accordance with Art. 33(1)(a) and (b) UPCA.

1. The Court discusses the patent and cites the principles of claim construction stating among others (para. 72): 
   “Additionally, the skilled person is taking the purpose of every patent claim into account, to provide the average person skilled in the art with a technical teaching which, when reworked, leads to the intended success of the invention.”
2. The Court states that during the introduction of the case (during oral argument), it warned the defendant that it may give a different meaning to the claim element “the slot is formed by an overlap of a first end of the wall and a second end of the wall”.
3. The Court states that it is established case law that the granting procedure is not by itself relevant for the interpretation of the claim, but that the patentee’s assertions during the granting procedure and in particular the Technical Board of Appeal’s endorsement thereof, can be seen as an indication of the view of the person skilled in the art at the filing date.
4. The Court - with its new and broader interpretation of “the slot is formed by an overlap of a first end of the wall and a second end of the wall” - comes to the conclusion that the hair curler of Dreame is infringing.
5. The Court concludes that there is not enough evidence that, under UK law, an authorized representative is an infringer.
6. The Court finds it more likely than not that the patent is infringed and the other requirements for a preliminary injunction (urgency, necessity) are fulfilled.
7. The Court imposes a preliminary injunction on defendants 1-4 for the UPC and for defendants 1 and 3 for Spain as well. 

Comment

1. If one sees the UPC as one country with one Court (which is the right view in my opinion), the Court of First Instance has cross-border jurisdiction with respect to all companies domiciled in UPC territory based on Art. 4 BR.
2. However, contrary to what the Local Division Hamburg seems to imply, that does not mean that a Local Division also automatically has (internal) competence to hear the case. If a company is not infringing in Germany and is not established in Germany, there is no competence unless the second sentence of Art. 33(1)(b) UPCA is applicable (multiple defendants). In this case, defendant 4 was a German company and could therefore (assuming there was a commercial relationship between the companies) function as anchor defendant. However, the Hamburg Local Division did not state so.
3. As apparently (the Hamburg Local Division did not explicitly say so) the defendants did not raise any objection against the competence of the Hamburg Local Division, this may also have resulted in competence.
4. The competence as to Spain was given with respect to defendant 3 (the Dutch company) because of Art. 4 BR, and with respect to defendant 1 (the Hong Kong company) on the basis of Art. 8(1) BR (applicable because of Art. 71b(2) BR). The latter has already been decided in Solvay v Honeywell (CJEU, Judgment of 12 July 2012, C-616/19, Solvay v Honeywell, ECLI:EU:C:2012:445, para. 30). As both companies were infringing in the Netherlands (the UPC) as well as Spain, they could have been sued in Spain and in the UPC, which could lead to irreconcilable judgments.
5. The Court rightly assumed jurisdiction for the UK with respect to defendant 3. However, it was not sure if acting as an EU representative for Northern Ireland (as such) would be an infringement under UK law.
6. The competence against defendant 5 (the UK company) could also only be based on Art. 8(1) BR, but the only possible anchor defendant was defendant 3 (i.e. the EU representative). The Court states that it is not foreseeable that both companies could be sued before the same EU court. Assuming that an EU representative is an infringer under UK law (because they make the infringement possible – without an EU representative you cannot sell in Northern Ireland), I cannot see why they could not both be sued for infringement in the UK in the UPC. So the better reason (not only for preliminary injunction proceedings) is the uncertain position of an EU representative: whether they are an intermediate or even an accessory to the infringement is something to be decided by the CJEU (and the UK courts).
7. I add that I do not see a major problem injuncting a non-EU company belonging to an EU group of companies for infringement in its own country (for instance, Siemens UK for infringement in the UK). Although one may wonder if that is really necessary: if the UK company sells products made in the EU, an injunction in the EU will generally also stop sales in the UK.
8. However, I think that the UPC should not injunct UK companies (not being subsidiaries of EU companies) even if that would be possible under Art. 8(1) BR. I believe that in such a case international law of comity should prevail. Accepting such broad international jurisdiction would only lead to anti(-anti)-suit injunctions and an undesirable tension between judiciaries of different countries. One could of course argue that a decision of the UK court (which cannot be enforced in the UPC) and a decision of the UPC (which cannot be enforced in the UK) are never irreconcilable even if they concern the same patent and the same infringement. However, that is a rather artificial and unsatisfactory way to avoid the hot potato. In the end, it should be “comity” which provides the solution.
9. The Court changed its mind with respect to the interpretation of a claim element under the influence of the Court of Appeal decision in the first case (reversing the decision of the Local Division in as far the latter had refused to find the new Dreame product infringing).
10. The reasoning for the change of mind is in my opinion convincing. The addition with respect to claim interpretation (see para. 72 in fine of the order, mentioned hereabove under point 3 of the decision of the Court) leads to a more functional interpretation of the claim. In the case at hand, this did not lead to an interpretation beyond the letter of the claim. One could also say claims have to be read with a mind willing to understand. I add that in rare cases, such a more functional reading of the claim can lead to the conclusion that there is no infringement when, even though the product of the infringer reproduces the letter of the claim, it clearly does not lead to the intended success of the invention. I say “rare”: two cases in my 50 years of practice.
11. The Court states that it is established case law that the file wrapper is not by itself relevant for the interpretation of the claims. If that makes the Germans (who have traditionally refused to take the file wrapper into consideration) happy, then that is fine, but in practice the UPC has, of course, accepted reliance on the file wrapper if one states that the patentee’s assertions during the grant can be seen as an indication of the view of the person skilled at the filing date. With that formulation, you can apply file wrapper estoppel in all cases where this is considered necessary, the so-called angora cat cases. 

7 April 2026
Court of Appeal, Suinno v Microsoft

UPC_ CoA_21/2026

Security for costs on appeal

Facts

1. Suinno started an infringement action in the Paris Central Division. Microsoft lodged a counterclaim for revocation.
2. After Suinno failed to produce the ordered security for costs, the Paris Central Division issued a default judgment in the infringement case.
3. Suinno was ordered to pay the costs in the infringement proceedings as a result of cost proceedings.
4. Appeal against the costs decision was denied.
5. The Central Division revoked the patent in the revocation proceedings.
6. Suinno appealed.
7. On 24 March 2026, Microsoft asked for a stay of the appeal proceedings until Suinno (i) paid the costs that were due to Microsoft after the first instance proceedings (total of €650,000) and (ii) provided security for the costs on appeal (with Microsoft filing a request for such security for costs).
8. On 31 March 2026, the Central Division ordered Suinno to pay the costs that were due to Microsoft as a result of cost proceedings filed after Microsoft had prevailed in the first instance revocation proceedings.     

The Court of Appeal

1. Microsoft as the defendant in the appeal proceedings can ask for security for its costs on appeal.
2. The Court states (on the basis of Art. 69(4) UPCA and its case law):
   1. Only the defendant in first instance or the respondent in appeal can ask for security for costs (also if in first instance, the respondent was the claimant).
   2. However, the defendant in a cross complaint for revocation cannot ask for security, as such revocation complaint has to be seen as a defence against the alleged infringement. A defendant should be able to use all arguments against the alleged infringement.
   3. If both parties appeal, each party can only ask for the security for costs pertaining to its defence.
   4. It is different in cases where the original defendant rightly asserts that there is a manifest error in the decision of the Court of First Instance. In such cases, only the original defendant (now the applicant) may require security for costs in the appeal proceedings.
3. The Court orders Suinno to provide security of €600,000 for the costs on appeal.
4. The Court grants Microsoft an extension for responding to the appeal, in view of the exceptional circumstances that Suinno did not yet pay any costs.

Comment

1. A must read for all representatives because the decision is a good guide for security for costs (indicated hereabove) with, in my opinion, a convincing motivation.
2. Microsoft also sought security for the costs that had already been awarded to it at first instance. This was deemed to fail.
3. Normally, a request for security would not be a reason for an extension. However, in this case, it is very likely that Suinno will not put up the security and that the appeal also leads to a default decision.
4. The lesson for small patentees: It is unlikely that you force a big company into a settlement by suing with a weak patent in the UPC. In general, a big company will feel obliged to fight in order to show the world that you have to be willing to fight if you want to get money. Therefore, as a small patentee, you should only start such fights if you have a really good case (so good that you can find the necessary funding for your litigation). Otherwise your fate is Suinno’s fate, which after a lot of efforts and costs may be forced into bankruptcy. Parties are equal in the UPC but some parties are more equal than others!

8 April 2026
Central Division Munich, Wirplast v Vilpe 

UPC_ CFI_280/2025 

Revocation action

Facts  

1. Revocation action with respect to EP 2 649 380.
2. Wirplast considers the patent invalid because of lack of inventive step.
3. Vilpe files auxiliary requests.

The Court

1. General - procedural issues:
   1. UPC proceedings are adversarial proceedings based on the facts and evidence put before the Court.
   2. UPC proceedings are front loaded. Parties have to present their full case as early as possible.
   3. The defendant requested that documents that had not been fully translated to English should not be allowed in the proceedings. After the interim conference and after the Court had ordered translations, machine translations were provided.
   4. During the oral hearing, both parties confirmed that they would only rely on the parts of the prior art documents that were translated and submitted along with the Statement of Claim. So no decision with respect to the admissibility of these documents was necessary.
2. The parties discussed only one claim element “<an exhaust ventilation pipe> extending through an outer roof of a building”.
3. The Court cites the principles of claim interpretation (stating that neither party had provided a complete claim construction) and defines the person skilled in the art (which also neither party had done).
4. After having interpreted the claim elements, the Court cites the principles for establishing inventive step (paras. 50-58 of the decision), referring to Amgen v Sanofi and Meril v Edwards (CoA, decisions of 25 November 2025, Amgen v Sanofi, UPC_CoA_528/2024 and UPC_CoA_529/2024 and Meril v Edwards, UPC_CoA_764/2024 and UPC_CoA_774/2024).
5. The Court reiterates that the burden of proof is on the claimant and that the question of inventive step is a question of law.
6. After discussing the prior art put forward by the claimant, the Court concludes that the patent is inventive and dismisses the revocation action.

Comment

1. This case shows that it is important for a user of the UPC (which provides for a different procedure than for instance opposition before a national patent office or the European Patent Office) to litigate with an experienced litigator who knows the Rules of Procedure and the case law of the Court of Appeal.
2. In fact, the ‘general introduction to UPC proceedings’ by the Court in its decision implicitly (and thus more politely) states the same.
3. Most experienced representatives would have advised the claimant in this case that the prior art – based on which the claimant wanted to revoke the patent for lack of inventive step – was insufficient and a revocation action a waste of money.
4. The case also shows that a (with hindsight) simple idea can lead to a valid and useful patent!

9 April 2026
Local Division Düsseldorf, Seoul Viosys v expert 

UPC_CFI_1477/2025 

Costs

Facts

1. In first instance, the parties had agreed about the costs: € 100.000 for the winner. During the oral hearing, the Local Division had parties suggested to come to such agreement.
2. On appeal, the decision in first instance was confirmed and Seoul Viosys (the winner also on appeal) started cost proceedings with respect to the costs in appeal, claiming that the €100k had also been agreed for appeal. Alternatively, it claimed its real costs of about € 50k.

The Court

1. The agreement was only for first instance.
2. The Court awards the € 50k.

Comment

1. Very strange that Seoul tried to argue that the agreement was also for appeal while the agreement for first instance was reached during the oral hearing in first instance based on an estimation by parties.
2. The Local Division did a good thing to have the parties agreeing in first instance.
3. I advise the Court of Appeal to do the same (assuming parties have not yet reached agreement). The Local Division which also has to deal with cost proceedings pertaining to the costs on appeal will be grateful!

10 April 2026
Central Division Milan, Fisher v Flexicare

UPC_CFI_480/2025 

Revocation

Facts

1. On 29 May 2025, Fisher requests revocation of Flexicare’s patent EP 4 185 356 for a nasal canula.
2. The patent is a Unitary Patent.
3. Parties agreed on costs in the way that if the representative confirms that the costs have been more than the recoverable costs (here € 38.000), said amount will apply without the necessity of justification by documentation.
4. The claimant claims that the patent is not novel and not inventive. Moreover, claim 1 and 4 are invalid because of extension of subject matter and claim 4 because of insufficient disclosure.
5. The defendant filed 13 auxiliary requests.
6. The defendant filed with its rejoinder further auxiliary requests which were refused. 

The Court

1. The Court discusses the content of the patent and formulates the problem resolved by the patent.
2. The Court repeats the legal standard for claim interpretation (Nanostring v 10x Genomics) and interprets the different claim elements from the point of view of the skilled person.
3. The Court does not agree with the narrow interpretation of certain claim elements proposed by defendant.
4. The Court states that a “swivel” connection does not mean that such connection is limited to one axis of rotation.
5. With respect to the declaration of a party expert, the Court remarks that claim interpretation is a matter of law and that the expert declaration has to be seen as a submission of a party. Moreover, the expert comes to his (narrow) interpretation referring to the description while in general the description does not limit the meaning of the claim.
6. The Court states that anyway the discussion (about “swivel connection”) is not relevant as the Court finds lack of novelty novelty on the basis of D2.
7. The Court cites the gold standard for assessing novelty and states: 
   “When assessing novelty, the Court will examine the disclosure of the prior art document overall and will compare this disclosure to the scope of the patent in suit. If one way of “mapping” leads to the assessment that a piece of prior art is novelty destroying, this leads to the result that the patent must be revoked.”
8. Claim 1 lacks novelty over D2.
9. D2 labels a different component as a manifold. Although this may be important, the Court states that to assess the disclosure of a prior art document the Court will focus on the technical function the disclosed components provide. In doing so the Court concludes that D2 shows a manifold in the sense of the patent.
10. The fact that defendant has not explained why auxiliary request 1 would be inventive does not lead to the conclusion that the request is inadmissible because of R. 30.2 RoP.
11. Auxiliary request 1 is also not novel.
12. Auxiliary request 2 is admissible but not allowable because of lack of clarity (Art. 84 EPC).
13. As all further auxiliary requests contain the same unclarity, they are also not allowable.
14. The Court concludes that there is no (material) request to maintain the patent on the basis of the dependent claims.
15. Defendant only defended novelty of the dependent claims because of novelty of the independent claim 1. As claim 1 is not novel, such defence is not sufficient.
16. Defendant also did not provide a request in which the dependent claims were formulated as an independent claim.
17. The Court revoked the patent. 

Comment

1. The defendant was not very successful: filing one auxiliary request which was not novel, twelve auxiliary requests which were unclear, further auxiliary requests which were late and finally a further strangely formulated request which went nowhere. I do not think that this was celebrated with champagne.
2. I think the Court is right that if a prior art document shows a part of a product which has the same function as a part of the patented product, then it is irrelevant if that part in that prior art document has been given a different name than in the patent. That is what the Court meant with the headnote and what you find in consideration 74, quoted at point 7 above.
3. If claim 1 is not novel, then it is very well possible that one of the dependent claims is novel because it is adding something that cannot be found in the novelty-destroying document (and if not in the dependent claims, then maybe there is something in the description). However, if you defend the novelty of the dependent claims only with the fact that the independent claim is novel then your dependent claims go down together with that independent claim, if that is found to be not novel.
4. I did not quite understand if the Court required an auxiliary request for defending the validity of dependent claims if the independent claim goes down. I have already stated before that, in my opinion, that is not necessary, because dependent claims are granted claims.
5. However, I fully agree with the Court that you have to make clear that in case independent claims go down, you defend the validity of one or more dependent claims and that you have to formulate the claim(s) which you defend in your defence (and to be sure that you do not end up in a debate about the necessity of an auxiliary request, do it in the application to amend the patent).
6. Different from UK litigation, a party expert is not very relevant for claim interpretation in UPC proceedings. You need a litigator who is able to convince the Court with solid arguments what the interpretation of a certain claim element is. If you hire professor X as party expert, you have to make sure that he gets the right instructions, such as that the description in general does not automatically limit the meaning of certain claim elements.
7. This case again shows how important (and difficult) it is to timely come up with (here in reaction to the Statement of Claim) a small number of good auxiliary requests. We will never know if the refused auxiliary requests (or in this case the dependent claims) could have saved the patent.
8. Bravo for the Central Division in Milan: a decision in just over 10 months!

10 April 2026
Local Division Munich, Seoul v expert 

UPC_ CFI_1110/2025; UPC_CFI_1111/2025 

Costs (reimbursement)

Facts

1. This concerns infringement proceedings with respect to patent EP 3 926 698.
2. On 10 October 2024, the Düsseldorf Local Division issued an injunction and dismissed the counterclaim for revocation. The defendants, expert klein, had to pay the costs.
3. On 11 November 2024, the claimant started cost proceedings and on 14 April 2025, the Local Division decided the amount of costs to be paid by defendants.
4. On 2 October 2025, the Court of Appeal reversed the decision of the Local Division and rejected the claim for infringement and invalidated the patent.
5. On 10 October 2025, in cost proceedings, the defendants asked reimbursement of the costs paid on the basis of the first cost decision, costs for the first instance and for appeal. 

The Court

1. The Court orders reimbursement of the paid costs, as with the decision of the Court of Appeal the cost decision with respect to the first instance becomes void.
2. Orders payment of the costs in first instance and appeal.

Comment

1. A logical decision! In my opinion, although not entirely clear, a party who wins on appeal after having lost in first instance and after having paid its costs of first instance has to make sure that he also asks for reimbursement (and for costs in first instance and appeal) within one month of the decision of the Court of Appeal in cost proceedings before the Local Division of first instance.
2. The case shows again that the whole setup regarding costs is unpractical, costly and time-consuming for the Court. In this case the Court had to engage in cost proceedings (deciding about silly things like the costs of travel etc.) and now is confronted with the fact that that was all for nothing because the Court of Appeal reversed the first instance decision and they have to redo the work!

3. My advice (as long as we have not changed this silly system) to Local Divisions is to grant in the decision on the merits an interim award of costs (in general half the ceiling) and, if cost proceedings are started, to stay such proceedings until the decision on the merit becomes final. Parties should ask for such interim award in their proceedings on the merits. The best is of course if parties agree on costs and if not voluntarily, then with some kind prompting by the Court during the interim conference or the oral hearing.  

    

– All comments above are Prof. Hoyng‘s personal opinions –