Rule 150 – Separate proceedings for cost decision

1. A cost decision may be the subject of separate proceedings following a decision on the merits and, if applicable, a decision for the determination of damages. The cost decision shall cover costs incurred in the proceedings by the Court such as costs for simultaneous interpretation and costs incurred pursuant to Rules 173, 180.1, 185.7, 188 and 201 and, subject to the Rules 152 to 156, the costs of the successful party including Court fees paid by that party [Rule 151(d)]. Costs for interpretation and translation which is necessary for the judges of the Court in order to conduct the case in the language of proceedings are borne solely by the Court.

2. The Court may order an interim award of costs to the successful party in the decision on the merits [Rule 119] or in a decision for the determination of damages, subject to any conditions that the Court may decide.

Case Law:

Court of Appeal

IPPT20250120, UPC CoA, SharkNinja v Dyson
Inadmissible application for cost decision following decision on provisional measures. An application for a decision for costs can only be lodged within one month after the service of the decision on the merits. (R. 150 RoP). If the applicant does not start proceedings on the merits of the case pursuant to R. 213 RoP, for example, if the application for provisional measures was unsuccessful, R. 150 and 151 RoP do not appear to be applicable, at least on a strict literal reading. However, to fulfil the objectives of Art. 69(1-3) UPCA that the successful party can have its reasonable and proportionate legal costs and other expenses compensated by the unsuccessful party, an application of R. 150 and 151 RoP mutatis mutandis would be justified in that situation.

IPPT20240729, UPC CoA, Hanshow v VusionGroup
Application for determination of costs following an order or decision of the Court of Appeal relating exclusively or partially to the costs of the appeal must be submitted to the Court of First Instance and will be decided by the judge-rapporteur of that court. If the successful party wishes to apply for an order for costs following a decision in principle on the obligation to pay costs, it must submit an application within one month of notification of this decision (Rule 151 RoP).

Court of First Instance

IPPT20250224, UPC CFI, LD Munich, Bruker v 10x Genomics & Nanostring
Proceedings for costs incurred (€ 337.431,50) following appeal in summary proceedings (Article 69 UPCA, R. 150 RoP, R. 151 RoP). Application for a cost decision admissible following a decision on costs (R. 242.1 RoP) by the Court of Appeal in proceedings for interim measures (summary proceedings). Application filed in due time, given extension of the one month period for filing the application as granted by judge-rapporteur (R. 151.1 RoP). The determination of the costs for summary proceedings in cost proceedings is final and is limited to costs claimed within the one month time period.

IPPT20250215, UPC CFI, CD Milan, Eoflow v Insulet
The costs of a preliminary injunction must be settled at the same time as the decision on the merits (Article 69 UPCA, R. 150 RoP) since the outcome of the preliminary phase must be considered in the framework of the overall settlement of litigation costs; cost compensation cannot be parcelled out according to the outcome of the various stages of the case but must relate to the final decision on the case as a whole. The outcome of the preliminary phase concerning the application for a preliminary injunction, therefore, does not give rise to an award of costs if the filing of an application for preliminary measures has already been followed or is to be followed by proceedings on the merits

IPPT20250116, UPC CFI, LD Hamburg, Avago v Tesla
Withdrawal of action, pending appeal (R. 265 RoP). If a case is pending before the court of appeal, the court of appeal has jurisdiction to decide on the admissibility of the applications for withdrawal. However, the situation is different for the request for the determination of the costs to be refunded under Rules 150 RoP. This is currently still pending at first instance, with the result that the court of first instance still has jurisdiction to allow its withdrawal, in accordance with the rules on the procedure for the determination of costs before the Judge-Rapporteur. In any case, Rule 265 RoP applies mutatis mutandis to the proceedings for the determination of costs, even if there is no explicit reference to that rule. Since this is not a measure of the direction of proceedings under Rules 331 et seq. RoP, but a substantive decision within the original jurisdiction of the Judge-Rapporteur under Rule 156.2 RoP, the Judge-Rapporteur also has original and sole jurisdiction to allow the withdrawal. 

IPPT20250108, UPC CFI, CD Paris, Meril v SWAT
No cost decision concerning application for access to written pleadings and evidence (R. 150 RoP, R. 262 RoP). A decision on costs presupposes that there has been a decision on the merits of the dispute or for the determination of damages. For these purposes, a “decision on the merits” must be understood as a decision that concludes litigation proceedings, that is proceedings where the ascertainment of a right is sought by one party against another and is capable of producing the effects of res judicata on conflicting subjective positions and from which a situation of the defeat of one party with respect to another may arise, justifying the award of costs. 

IPPT20241230, UPC CFI, LD Milan, Insulet v Eoflow
Application for cost decision dismissed (R. 150 RoP) because the order refusing intervention did not contain a costs decision deciding in principle on the obligation to bear legal costs in accordance with rule 118.5. RoP

IPPT20241129, UPC CFI, LD Düsseldorf, Fujifilm v Kodak - II
The Claimant may, at its own expense, engage an interpreter (into Japanese) who may, if necessary, use the equipment available in the courtroom for simultaneous interpretation. (Article 51 UPCA, R. 109 RoP, R. 150 RoP).

IPPT20241011, UPC CFI, LD Munich, MSG v EJP
Infringement action and revocation counterclaim after revocation of the patent by Technical Board of Appeal. Withdrawal of infringement action requires a decision on the allocation of legal costs and other expenses Article 69 UPCA, R. 150 RoP, R. 265.2(c) RoP). Unnecessary legal costs and other expenses within the meaning of Art. 69(3) UPCA are those that are caused by a measure that was not necessary and/or unsuitable for enforcing or defending a right and that can be separated as such. However, it does not include costs that are (ultimately) unnecessarily incurred due to unsuccessful enforcement or defence as a whole. These are already covered by the basic rule of Art. 69(1) UPCA […]. Whether a severable measure was unnecessary is to be assessed from the ex ante perspective of a reasonable and economically rational party. An objective standard is to be applied. Reimbursement of 60% of the Court fees for the infringement action (R.  370.9 (b) (i) RoP). No need to adjudicate revocation action (R. 360 RoP). Devoid of purpose because of the revocation of the patent in suit by the Technical Board of Appeal of the EPO of 4 July 2024. The costs of the revocation proceedings shall be borne by the plaintiff. The defendant is to be reimbursed 60% of the court fees paid for the counterclaim in analogous application of R. 370.9(b)(i) RoP.

IPPT20240625, UPC CFI, LD The Hague, Amycel
Simultaneous interpretation during the oral hearing  into Polish allowed, but to be decided later whether the costs thereof shall become costs of the proceedings (Article 51 UPCA, Rule 109 RoP, Rule 150 RoP). Rule 109 RoP includes a double/twofold ‘appropriateness-test’, in the sense that it is to be decided (i) whether allowing translations during the oral hearing is appropriate and (ii) whether it is appropriate that the costs of such interpretation shall become costs of the proceedings. Simultaneous interpretation will in general already be appropriate if the language of the proceedings is not a language that is sufficiently familiar to (one of) the parties or to their counsel. The threshold for allowing interpretation as such is therefore low for R. 109.1-requests. For R. 109.4-requests the threshold seems even lower: for self-paid translations the only restriction seems to be whether it is practically possible (R. 109.2 second sentence). Generally it cannot reasonably be expected that the UPC provides translations to all languages, even if these have no relationship at all with the UPC or with one or more Contracting Member States. It seems reasonable to interpret R. 109.5 in such a way that it does not prevent the Defendant from submitting the costs incurred for interpretation for recovery as costs of the proceedings at a later point in the proceedings, if facts and/or circumstances are established that make it unreasonable for Defendant to bear these costs. 

IPPT20230913, UPC CFI, LD Vienna, CUP&CINO v Alpina Coffee
The scope of protection of a European patent is to be interpreted on the basis of Article 69 (1) EPC including its interpretative protocol in conjunction with Article  24(1)(c) UPCA. Accordingly, the scope of protection of the patent is determined by the content of the patent claims, for the interpretation of which the description and the drawings must also be taken into account. In this respect, the interpretation of the patent claims serves not only to eliminate any ambiguities, but also to explain the technical terms used therein and to clarify the meaning and scope of the invention described therein. The patent description is the source material for determining the technical teaching that is protected by the patent claim. This form of interpretation combines adequate protection for the patent proprietor with sufficient legal certainty for third parties. The aspect of legal certainty requires that interested third parties are able to recognise whether a contemplated, planned or already realised specific embodiment falls within the scope of protection of the patent claim. In proceedings for interim measures, the successful defendant can be finally awarded procedural costs upon application (Article 69 UPCA, Rule 150 RoP). The applicant cannot successfully claim the costs of these proceedings as the unsuccessful party, even if the proceedings on the merits are successful.