Rule 152 – Compensation for representation costs

1. The applicant shall be entitled to recover reasonable and proportionate costs for representation.

2. The Administrative Committee shall adopt a scale of ceilings for recoverable costs by reference to the value of the proceedings. The scale may be adjusted from time to time.

3. Where a claim, counterclaim, application, request or appeal subject to only a fixed fee is made, the party concerned shall, in the first submission, assess its respective value for the purpose of calculating the applicable ceiling. The other party shall be heard. Rule 370.6 shall apply mutatis mutandis.

Case Law:

Court of Appeal

IPPT20250505, UPC CoA, Meril v SWAT
No compensation for costs in relation to applications for access pursuant to R. 262.1(b) RoP. Identifying confidential parts of written pleadings and evidence and requesting confidentiality is something parties may do in advance even though there may never even be a request for access.

Court of First Instance

IPPT20260202, UPC CFI, LD Dusseldorf, 10xGenomics v Curio Bioscience
Cost decision on the reimbursability of costs in PI proceedings (Article. 69 UPCA, Rule. 150, 151, 152 RoP). Costs incurred in PI proceedings are reimbursable separately. The decision on the reimbursability of costs is to be taken in a uniform cost procedure following the proceedings on the merits. The ceilings for PI proceedings and the proceedings on the merits must be determined separately – follow up to Decision of Ortovox v Mammut). If the costs in PI proceedings are reimbursable separately within a ceiling that applies specifically to those proceedings, the costs of both the PI proceedings and the main proceedings are capped by the applicable ceiling. It is inadmissible to mix the costs of the PI proceedings and the proceedings on the merits or to shift them from one proceeding to the other, even if the results of the PI proceedings may be used in subsequent proceedings on the merits. It is the applicant’s responsibility to ensure that it remains within the ceiling during the PI proceedings. Compensation for representation costs (Rule. 152.2 RoP). For partial success, the applicable ceiling shall correspond to the proportion of success of the party seeking cost recovery. Accordingly, First, the reimbursable representation costs must be determined based on the quota set by the Court in accordance with Art. 69 UPCA in conjunction with R. 118.5 RoP. Second, the ceiling, which is reduced in accordance with the quota set by the Court, must be applied. 
 

IPPT20260105, UPC CFI, LD Hamburg, Nera Innovations v Xiaomi Communication
Decision on reimbursement of representation costs to the Defendant in appeal proceedings concerning the service of the statement of claim. (Article 69 UPCA, Rule 150 RoP, Rule 152 RoP, Rule 220 RoP) Proportional reduction of attorney's fees by two-thirds (Art. 48 (4) UPCA.). Procedural issue did not require the involvement of more than one lawyer, whereas 3 were hired. The involvement of a patent attorney for a non-technical question is not appropriate . Upper limit for reimbursable representation costs is not applicable in appeal proceedings ,a higher reimbursement of attorney's feesis not justified for for procedural issues. Value of Eur 1.5 million set for the infringement proceedings is irrelevant ; the appeal concerns only a fraction of this amount . 

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

IPPT20250908, UPC CFI, CD Paris, Microsoft v Suinno
Confidential and privileged information concerning costs of legal representation pursuant to EU law (Article 58 UPCA, R. 152 RoP, R. 262A RoP, R. 287 RoP). Information concerning the number of hours spent on the case by the instructed representatives and the fees agreed upon between the parties must be considered confidential and information concerning the number of hours spent on the case by the instructed attorneys and the fees agreed upon between the parties falls within the scope of the attorney-client privilege provided by Rule 287 RoP.

IPPT20250813, UPC CFI, LD The Hague, Winnow v Orbisk
If the counter claimant seeks revocation of claims not asserted against it, and those claims are upheld, a compensation of costs is in order (Article 69 UPCA, R. 152 RoP).

IPPT20250801, UPC CFI, LD Hamburg, Alexion Pharmaceuticals v Samsung Bioepsis - II
IPPT20250801, UPC CFI, LD Hamburg, Alexion Pharmaceuticals v Samsung Bioepsis - I
Cost decision (R. 151 RoP). With regard to the Defendants’ claim for reimbursement of litigation fees, in the court's view, the litigation fees for the two lawyers and patent attorneys are justified. There is no need to provide further proof of costs. In contrast to this, the Defendant has failed to provide a comprehensible explanation as to why it was appropriate and necessary for two English solicitors to be involved in the present proceedings. On the contrary, the costs incurred for the private expert […] are also eligible for reimbursement. Insofar as the Applicant also objects to the travel expenses claimed on the grounds that the patent attorneys arrived two days before the oral hearing, this seems reasonable. The Defendants’ demand for reimbursement of representation costs for the cost procedure is unfounded.
 

IPPT20250727, UPC CFI, CD Paris, Seoul Viosys v Laser Components
Non recoverable costs of legal expert (€ 6,720) on interpretation of Article 33(4) UPCA. The team of representatives would have been able to consider the issues raised by the revocation action, and in particular, the issue of the interpretation of Article 33 UPCA, and on that basis prepare adequately and appropriately file their submissions. 

IPPT20250422, UPC CFI, LD Düsseldorf, Ortovox v Mammut - I
Reasonable and proportionate legal costs (Article 69 UPCA, R. 152 RoP). That several lawyers from the same law firm were acting on behalf of the plaintiff does not preclude the necessity and appropriateness of the costs. Infringement analyses carried out in the run-up to the summary proceedings served to prepare for the main proceedings, which were to be expected in any case against the background of the parallel Swiss nullity proceedings and the Rules of Procedure of the Unified Patent Court. On this basis, it is justified to allocate the costs incurred there to the main proceedings. Drafting a warning letter, an application for interim measures or a statement of claim, fall within the core area of a lawyer's work. Amount claimed falls within the limits set by the Administrative Committee’s decision of 24 April 2024, which apply separately to proceedings for interim measures and main proceedings.

IPPT20250422, UPC CFI, LD Düsseldorf, Ortovox v Mammut - II
Reasonable and proportionate legal costs (Article 69 UPCA, R. 152 RoP). Assumed that fees calculated on the basis of the German Lawyers' Fees Act are generally necessary and reasonable and therefore also recoverable before the Unified Patent Court.

IPPT20250414, UPC CFI, LD Düsseldorf, Seoul Viosys v expert e-Commerce – II
Compensation for representation costs (Article 69 UPCA, R. 152 RoP). The first and second defendants shall each pay the claimant EUR 31,982.85 for the costs of the infringement action within 21 days of service of this decision. The second defendant shall pay the claimant a further amount of EUR 51,112.73 for the costs of the counterclaim for annulment within 21 days of service of this decision.

IPPT20250319, UPC CFI, LD Munich, MSG v EJP
€ 33.224,50 compensation for representation costs (Article 69 UPCA), R. 151 RoP, R. 152 RoP). Costs of legal proceedings are those costs that have been (actually) incurred in the specific pending or relevant proceedings. These include, in particular, the costs listed in Rule 151(d) of the Rules of Procedure. Other costs are those that have not been incurred in the pending proceedings but are directly and closely related to the proceedings in question. The costs in question must be cumulatively reasonable and appropriate, which is always a matter for the individual case. The criteria mentioned [...] ensure a high level of protection for European patents by preventing an injured party from being deterred from bringing legal proceedings to protect their rights and by ensuring that the measures, procedures and remedies necessary to enforce intellectual property rights are not unnecessarily costly. Reasonable means necessary. Based fundamentally on the ex ante position of a reasonable and economically rational party, the decisive factor is whether the measure incurring the costs appeared objectively necessary and suitable for achieving the legitimate objective of the proceedings. The measure must therefore have appeared relevant for the pursuit or defence of legal rights. The costs for preparing the application for a determination of costs in the amount of € 285.00 are to be reimbursed. These are also reasonable and appropriate costs for the appropriate legal defence.
 

IPPT20250217, UPC CFI, RD Nordic-Baltic, Imbox v Brunngard
Joint legal costs of € 38.000 after withdrawal of application for provisional measures (Article 69 UPCA, R. 152 RoP). Since the value of the proceeding is set in relation to the whole proceeding (not in relation to each defendant) and the decision by the Administrative Committee clearly states the ceilings shall apply “regardless of the number of parties”, the Court concludes that this legal framework must be understood to mean that when an application against several defendants is dismissed, the ceiling serves as a joint ceiling for all defendants’ representation costs. 

IPPT20250110, UPC CFI, LD Paris, HP v Lama
Parties’ request for a 50% increase in the ceiling for representation cost denied (Article 69 UPCA, R. 152 RoP). No particularly complex case; pre-trial settlement costs not considered; each party owes € 7,500 euros in legal costs.

IPPT20230917, UPC CFI, LD Brussels, OrthoApnea
Value of the proceedings set at the lowest possible amount of € 250.000 in the absence of arguments or evidence of of a higher amount. (Rule 104 RoP). Whether or not a valuation is ‘sufficient’ in the light of possible recoverable costs (in application of R. 152(3) RoP) does not concern an element to be considered in assessing the valuation of the proceedings. 

IPPT20240318, UPC CFI, CD Munich, Astellas v Healios
Order following interim conference (Rule 105(5) RoP): 1. Document D18 is admitted into the proceedings. The parties and the judge-rapporteur agreed that D18 was admitted into the proceedings on the condition that the Defendant has until 11 April 2024 to file a succinct reply to the submission and the declaration, possibly including a short reply expert report, of which the length should be similar to Claimant´s submissions and which should be strictly in reply to points raised in D18 and the Claimant´s submission. 2. The value of the proceedings for the purpose of applying the scale of ceilings for recoverable costs is set at 4,000,000 EUR (four million euros) (Rule 152 RoP). 3. Parties are allowed to file additional exhibits relating to costs until 11 June 2024 for all costs incurred until that date. This submission may be updated by a further submission to be lodged at the latest noon CET on 24 June 2024. 4. The date and time for the oral hearing is confirmed for 25 June 2024, 09.30 CET. 

IPPT20240131, UPC CFI, CD Munich, Nanostring v Harvard

Value of the proceeding for recoverable costs (Rule 104(j) RoP,  Rule 152.3 RoP). Parties were in agreement of the value of the proceedings being set at EUR 7,500,000 (seven and a half million euro). The Court did not have any objections. The value of the proceedings is set accordingly.