Costs have become an increasingly important topic in proceedings before the UPC. This comes as no surprise given the generous ceilings for recoverable costs for the successful party which go well beyond what can be reimbursed in national proceedings. This post intends to give a brief overview of recent case law on the most important cost-related issues:

General framework

According to Art. 69 UPCA, the successful party must generally bear the costs of the proceedings. In Rule 150.1 RoP, it is further clarified that the successful party can apply for a cost decision following the decision on the merits.
In main proceedings, there is little uncertainty around the allocation of costs and the initiation of cost proceedings. The first-instance decision generally contains a cost decision which in principle entitles the successful party to apply for a full cost award.
It is important to note that the application for a cost decision must be filed with the court of first instance within one month of the service of the decision on the merits (Rule 151.1 RoP). The Court of Appeal made it very clear that this is a strict deadline which cannot be extended (see recently CoA, order of 20 August 2025, Expert v Seoul, UPC_CoA_380/2025).

Costs in Preliminary Injunction Proceedings

From the beginning of the UPC, there has been a lot of controversy around the question whether it is also possible to claim costs after preliminary injunction proceedings. Recently, the Court of Appeal clarified in SharkNinja v Dyson (order of 20 January 2025, UPC_CoA_297/2024) that parties to preliminary injunction proceedings must – in line with Rule 213 RoP – wait until the main proceedings have been concluded to claim their costs – if (and this is important) there are indeed main proceedings.
There may, however, be scenarios in which no main action is filed; for example, if the applicant only needed a preliminary injunction for a certain event (e.g. a trade fair) or if the PI was not granted (see, e.g., CD Milan, order of 15 February 2025, Insulet v EOFlow, UPC_CFI_380/2024; LD Munich, order of 25 February 2025, Bruker v 10x Genomics, UPC_CFI_2/2023; LD Düsseldorf, order of 6 September 2024, Novartis v Celltrion, UPC_CFI_166/2024). In these circumstances, cost proceedings may still be initiated.
In other cases, the applicant to preliminary injunction proceedings only has the option to request interim costs under Rule 211.1(d). Thus, parties are always advised to include such a request in their application.

Cost items

According to Art. 69 UPCA “reasonable and proportionate legal costs and other expenses” can be reimbursed. Legal costs are those costs that have actually been incurred in the specific pending or disputed proceedings. Rule 151 (d) and 155 RoP provide a (non-exhaustive) list of cost items which can be included as legal costs in a cost decision. Other costs are those that have not been incurred in the pending proceedings but are nevertheless directly and closely related to them (LD Düsseldorf, decision of 9 July 2025, Fujifilm v Kodak, UPC_CFI_355/2023, UPC_CFI_186/2025).

As long as the costs are incurred immediately before the judicial phase, these costs are also eligible for compensation as they facilitate out-of-court dispute resolution. The court further clarified that the legal costs or ‘costs of representation’ in rule 151 (d) can be interpreted as covering all litigation-related costs (CD Milan, Decision of 22 July 2025, Insulet v EOFlow, UPC_CFI_597/2024).

The possibilities for recovering costs appear to be extensive. However, several divisions of the UPC have clarified that it is neither possible to get the interest on costs reimbursed nor to obtain reimbursement for the costs for representation in the costs proceedings (LD Munich, Decision of 10 January 2025, Edward Lifesciences v Meril, UPC_CFI_249/2023; CD Milan, Decision of 22 July 2025, Insulet v EOFlow, UPC_CFI_597/2024).

It follows from the case between Orbisk and Winnow (LD The Hague, 13 August 2025, Case Nos. UPC_CFI_327/2024, UPC_CFI_557/2024) that the divisions of the UPC may apply a correction to the costs to reflect the unsuccessful challenge of, for example, an auxiliary request outside of the scope of the alleged infringement. In this case, the correction was based on an examination of the economic focus of the validity dispute rather than on a binary assessment.

Costs and confidentiality

In order to protect trade secrets, personal data or other confidential information, Art. 58 UPCA creates the basis for the UPC to restrict or prohibit the collection and use of evidence or to restrict access to such evidence to specific persons. Several divisions have confirmed that a party may have an interest in keeping information regarding the cost its legal representation confidential (LD Düsseldorf, Decision of 22 April 2025, Ortovox v Mammut, UPC_CFI_16/2024 & CD Milan, Decision of 5 June 2025, Insulet v EOFlow, UPC_CFI_477/2025). According to the CD Milan, litigation costs are covered by confidentiality if they are specifically indicative of the company’s financial capacity, its commercial strategy, or the importance of the patent as a corporate asset.

Although Art. 58 UPCA also refers to confidential information of third parties, it is still unclear whether the third party can also be a party’s legal representative (yes according to the LD Düsseldorf in Ortovox v Mammut but not according to the CD Milan in Insulet v EOFlow).

Security for costs

Finally, there have also been some recent developments regarding the topic “security for costs” (Art. 69(4) UPCA, R 158(1) RoP), especially with respect to the question, who is entitled to such cost security. In the first decisions, the Local Divisions found that not only defendants but also claimants may request a security, arguing that a claimant is (also) a “party” within the meaning of R 158(1) RoP (LD Düsseldorf, 3 December 2024, 10x Genomics v. Curio Bioscience) or that, at least in cases with a counterclaim for revocation, a claimant is not only a claimant but also a “defendant” within the meaning of Art. 69(4) UPCA (LD Munich, 16 April 2025, Emboline v. AorticLab).
The Court of Appeal, however, does not share this “claimant-friendly” approach: It held that the ratio behind Article 69 (4) UPCA is “to protect a defendant against an insolvent claimant, who initiates an action without having sufficient means to compensate the defendant for the legal costs incurred by the proceedings” (20 June 2025, AorticLab v. Emboline). In addition, the CoA emphasized that, under the system of the UPCA and the RoP, a defendant is not allowed to challenge the validity of the patent by way of an invalidity defence within the infringement proceedings but only by lodging a separate counterclaim for revocation. Therefore, according to the CoA, allowing a security for costs order at the request of the claimant in the infringement action in response to a counterclaim for revocation would “unreasonably limit the defendant in its defence”.

By Robin van Kleeff, Rosalie ten Wolde, Alexander Bothe and Moritz Voiß.