UPC CoA, 4 October 2024: unsuccessfull party in case of a cease-and-desist-undertaking

Successful party in case of disposal of an action following a cease-and-desist-letter undertaking by the defendant (Article 69 UPCA, R. 360 RoP, Article 14 Enforcement Directive) must be determined on the basis of the specific characteristics of the case and in particular the requests of the parties and the content of the undertaking. 

As a general rule, the claimant must be considered the successful party. 

Grounds of equity may require that the claimant bear the costs where, in short, the claimant caused unnecessary costs by bringing proceedings against a defendant which did not give cause for action. 

No reasonable doubt that the Court of Appeal’s interpretation of Art. 69(1) UPCA is in conformity with Art. 14 of Directive 2004/48. The Court of Appeal will therefore not refer a question to the CJEU. 

Meril must be regarded as the unsuccessful party. Through Meril’s cease-and-desist undertaking, Edwards achieved the main purpose of its action for provisional measures, namely that Meril cease marketing products which Edwards considers to be covered by the patent at issue. Meril thus effectively placed itself in the position of the unsuccessful party.

IPPT20241004, UPC CoA, Meril v Edwards Lifesciences