Rule 360 – No need to adjudicate
Print this pageIf the Court finds that an action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, on the application of a party or of its own motion, after giving the parties an opportunity to be heard, dispose of the action by way of order.
Case Law:
Court of Appeal
IPPT20241004, UPC CoA, Meril v Edwards Lifesciences
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.
IPPT20240215, UPC CoA, Meril v Edwards Lifesciences
Court fee of € 11.000 is payable for appeal under Rule 220(1)(a) RoP against an order determining which party is to bear the costs of the proceedings in the context of the dismissal of an application for interim measures under Rule 360 RoP. (Rule 228 RoP). In the absence of a specific fee, the fee is to be paid for the case that is most comparable to the present case according to the system of the table of fees. The Table of Fees determines the fee for an appeal under Rule 220.1(a) RoP based on the nature of the action or application decided by the Court of First Instance. Under this system, the provision providing for a fee of €11,000 for an appeal under Rule 220.1(c) RoP concerning a request for provisional measures under Article 62 UPCA applies mutatis mutandis to the present appeal proceedings. This is because these appeal proceedings also concern an appeal against an order terminating proceedings relating to a request for provisional measures under Article 62 UPCA.
IPPT20240118, UPC CoA, Meril v Edwards Lifesciences
Application to order suspensive effect to appeal of order to bear the (to be assessed) costs of the proceedings up to a maximum of € 200.000 dismissed (article 74 UPCA, Rule 223 (1) RoP). Admissible application: A decision under Rule 360 RoP by which the court has dismissed an action because there is no need to adjudicate on the merits and includes the decision on the costs of the proceedings is to be be regarded as a final decision within the meaning of Rule 220.1(a) RoP and not as a decision within the meaning of Rule 223.5 RoP. Application unfounded: Interest of the plaintiff regarding further costs for cost assessment procedure does not generally outweigh the interest of the successful party within the meaning of Rule 151 RoP in a quick decision on the costs of the proceedings. Suspensive effect also not justified because if there are errors in the appealed order, they are in any case not errors that led to a manifestly erroneous order.
Court of First Instance
IPPT20240723, UPC CFI, CD Munich, Astellas v Healios
Three ways to terminate proceedings. Parties may at any time conclude their action by way of settlement, which may be confirmed by the Court (Rule 11 RoP, Rule 365 RoP), by way of agreement to withdraw the action (Rule 265 RoP) or by application to dispose of the action for having become devoid of purpose (Rule 360 RoP)..
IPPT20240619, UPC CFI, LD The Hague, Abbott v Sibio – EP879
Immediately enforceable preliminary injunction for direct infringement and order to deliver up devices in direct or indirect possession, subject to a recurring penalty payment (Rule 211 RoP). Abbott’s interests outweigh any interest of Sibio (Rule 211(3) RoP); action not devoid of purpose (Rule 360 RoP). Given Sibio c.s.’ breaches of their cease-and-desist declarations, which do not include an irrevocable penalty payment in case of breaches. According to their submissions, Sibio c.s. has left the markets where the patent is in force. This court therefore fails to see any legitimate interest on their part in opposing the preliminary injunction sought.
IPPT20240516, UPC CFI, CD Paris, Stäubli Tec-Systems
If there is no need to adjudicate (R. 360 RoP) the legal costs shall be determined by the full panel (R. 118.5 RoP). In case of a patent waiver Rule 370.9(c)(i) RoP, providing for a 60% refund of Court fees, applies by analogy.
IPPT20231219, UPC CFI, LD Munich, Edwards Lifesciences v Meril
The provision of Rule 360 RoP (settlement of the main proceedings) applies mutatis mutandis to applications for interim measures. There is an unintended regulatory gap in this respect; the consequences of the settlement of proceedings concerning the adoption of interim measures are not expressly regulated in the Rules of Procedure.