UPC CFI , LD Brussels, 4 December 2025 : Withdrawal of infringement action and determination of costs

Withdrawal of infringement action allowed (Rule 265 RoP).

Costs incurred by the Defendants cannot be considered “exceptional” within the meaning of Art. 69(2) UPCA. 

The Defendants have acted as any cautious and reasonable defendant would have acted. Given the EPO procedural background, it was reasonable for the Defendants to assume that the Applicant would appeal the EPO 's decision if it confirmed its Preliminary Opinion. 

The Applicant acted with "undue delay" in submitting the Application for Withdrawal two weeks after the EPO confirmed its Preliminary Opinion, knowing that this would be only two weeks before the Statement of Defence and Counterclaim for Revocation had to be submitted. 

Applicant to bear all costs of proceedings as "unsuccessful party". (Article 69(1) UPCA). 

Applicant is the “unsuccessful party”, not based on an assessment of arguments developed by the “successful party”, but merely on the withdrawal of the infringement action.

Reasonable and proportionate assessment of costs made from an ex ante perspective. (Rule. 152.1 RoP)  

Elements to be taken into consideration in this case are 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. 

Having the “costs” as such as an “ex ante” starting point with regard to the reasonability and proportionality safeguard the access to the UPC.

Requested representation costs for Defendants 1-2 not reasonable and proportionate; an amount of €100.000,00 to be reasonable and proportionate. (Article 69 UPCA). 

Any reasonable defendant would timely prepare its Statement of Defence together with its Counterclaim for Revocation pending EPO proceedings and also further process these documents.

The Action was withdrawn before the actual due date of the Statement of Defence and the Counterclaim for Revocation.

Since the deadline to submit was due in 2 weeks, some work was still to be expected to be executed to fine-tune the SoD and Counterclaim for Revocation.

IPPT20251204, UPC CFI, LD Brussels, CooperSurgical v European Distribution Center Motiva