Rule 360 – No need to adjudicate

If 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

IPPT20251219, UPC COA, Viatris Santé v Merz

No need to adjudicate (Rule. 360 RoP). R. 360 RoP also applies to procedural appeals devoid of purpose.  

IPPT20251127, UPC CoA, Strabag v Swarco
Like a claimant an appellant may also apply to withdraw an appeal (R. 265.1 RoP). Interest of an intervening party is not relevant. The intervener's appeal in this case is inadmissible pursuant to R. 360 RoP. If the intervener is prevented by the withdrawal of the main party's appeal from the scope of its appeal from bringing about a review of the first-instance decision in terms of fact and law, it may invoke this in any subsequent proceedings against both parties. In this respect, the intervener's binding effect under R. 316.3 RoP is limited. The binding effect of decisions against the intervener. can only apply insofar as the intervener is not restricted in its conduct of the proceedings.

IPPT20250626, UPC CoA, Ballinno v Kinexon
Request rejected to release € 56.000 security placed by Ballinno (Article 69(4) UPCA, R. 158 RoP). The evidence presented by Ballinno on the balance on its bank account is insufficient since in the event of a procedural loss, Ballinno must be able to cover both its own litigation costs – which may well exceed the applicable ceiling – and that of the other parties. The provision of security does not hamper Ballinno’s access to justice. The disposal of an action under R. 360 RoP following a withdrawal does not necessarily preclude the application of the principle  that the unsuccessful party must bear the costs (Article 69(1) UPCA). Under the circumstances of the case it is not necessary to examine the merits of the case to determine who the successful part is (one party unsuccessful in both instances)

IPPT20250618, UPC CoA, ILME v Phoenix
Appeal has become devoid of purpose (R. 360 RoP) after the withdrawal of the infringement action has been allowed and the infringement proceedings have been declared closed. No need to submit a request for withdrawal of the appeal pursuant to R. 265 RoP. Appeal must be dismissed pursuant to R. 360 RoP. No need to make a decision on costs.

IPPT20250512, UPC CoA, Ballinno v Kinexon
Action has become devoid of purpose and there is no longer a need to adjudicate on it (R. 360 RoP) after Ballino has withdrawn its request for provisional measures (injunctions, seizure of goods and penalties) on appeal, save for the appeal on security for costs. Cost Allocation (Article 69 UPCA, R. 360 RoP). Disposal of an action pursuant to R. 360 RoP can include a decision on who shall bear the costs; the review can be marginal. 

IPPT20250422, UPC CoA, Amazon v Nokia
Appeal against an order rejecting the production of evidence devoid of purpose after withdrawal of infringement action and proceedings are closed  (R. 360 RoP,, Art. 59 UPCA, R. 190 RoP). An appeal is devoid of purpose if there is no longer any reason to decide on it. As a result, the appeal has become devoid of purpose.

IPPT20250109, UPC CoA, EOFlow v Insulet
No need to adjudicate appeal by EOFlow from a denied joinder of provisional measures request after the Milan Local Division and the Milan Central Division issued their final decision rejecting Insulet´s applications for provisional measures (R. 360 RoP). R. 360 RoP aplies not only when the action itself has become devoid of purpose, but also when the appeal has become devoid of purpose. If the appellant has no legal interest in bringing appeal proceedings anymore, there is no reason to adjudicate on it. This means the appeal has become devoid of purpose. To have a legal interest in bringing appeal proceedings the appeal must be likely, if successful, to procure an advantage for that party.

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

IPPT20260313, UPC CFI, CD Milan, Neurocrine v Spruce

Revocation action disposed on becoming devoid of purpose. (Rule 360 RoP) Patent revoked ab initio (Article 101.2 EPC). Patent revoked by the Opposition Division of the EPO after the filing of the defence to the revocation action. Claimant’s request to declare the revocation action devoid of purpose, under the condition that the defendant makes a non-confidential undertaking that it will not enforce any divisional of the patent against the claimant, falls outside the scope of rule 360. The revocation action is solely directed to the (now revoked) patent and not to any other claim scope .The mere fact that the patent has been revoked does not mean that every divisional will suffer the same fate. 

IPPT20251007, UPC CFI, LD Milan, Hypertherm v TecMo
Final decision order adopted on recommendation of the judge rapporteur. No need to adjudicate on the claims, proceedings dismissed.
(Rule 363 RoP, Rule 360 RoP, Rule 220 (1) (a) RoP)

IPPT20290829, UPC LD Mannheim, Faro v PMT
Proceedings are closed: no need to adjudicate (R. 360 RoP) because of settlement with the first defendant (Article 76(1) UPCA) and cease-and-desist undertaking by the second defendant. Costs of the proceedings between the claimant and the second defendant to be borne by the defendant (Article 69 UPCA). By submitting a cease-and-desist declaration and providing zero information, the defendant has placed itself in the losing position. Equity does not require a different allocation of costs. No formal warning letter was required because the defendant was already aware of the infringement allegations which were explained to its employees.

IPPT20250519, UPC CFI, LD Munich, Dolby v Roku
No need to adjudicate because of settlement (R. 360 RoP), costs to be borne by respondent (R. 118.5 RoP). Giving cause for the action to be brought and requirement of a warning letter? If the obligation to bear the costs in a decision pursuant to Rule 360 RoP depends on whether the defendant gave cause for the action to be brought, the objective view of a person in the position of the plaintiff at the time the action was brought must be taken into account. The question is whether the plaintiff could have assumed at that time that it would not be able to obtain justice without judicial assistance. Even without prior warning and despite an immediate declaration of discontinuance and undertaking after proceedings for interim measures were initiated, the respondent must bear the costs if a prior warning was unnecessary because it would have been futile from the outset or because the warning would have created a risk that the asserted right would have been definitively frustrated before a court decision could be obtained. A warning letter is not a prerequisite for the admissibility or validity of an application for interim measures. Its absence does not automatically negate the urgency of the request. However, its absence may result in the applicant having to bear the costs if the respondent issues a cease-and-desist declaration and undertaking immediately at the beginning of the proceedings. If the respondent has already initiated legal proceedings for an anti-suit injunction or anti-enforcement injunction, a warning letter from the applicant is generally not required before applying for an anti-anti-suit injunction or anti-anti-enforcement injunction, because it can be assumed that the respondent will not comply with it unless there are concrete indications that it will behave differently.

IPPT20250219, UPC CFI, LD Munich, Swarco v Yunex - I
Order to preserve evidence and inspect premises has become devoid of purpose due to Swarco Futurit’s factual assertation being undisputed by Yunex (Article 60 UPCA, R. 360 RoP). The proceedings to secure evidence are a dependent part of the main proceedings. In the subsequent main proceedings, Yunex is precluded from making a first substantiated denial of identity or counter-evidence.

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.