UPC CFI 131/2025 (ACT 7974/2025, ORD 33711/2025) – OrthoApnea S.L. and VIVISOL B BV v Defendant

Court
Local Division Brussels
Date
Outcome
The Court ordered the Defendant to pay €41,656.64 in costs to the Claimants, comprising €38,000 for representation expenses (ceiling), €374.06 for experiment and expertise, €1,500 for translation and interpretation, and €1,782.58 for claimants' travel and accommodation. Claims for interest and costs related to unsuccessful interlocutory proceedings were dismissed.
Sector
Pharma/Bio
Decision Type
Order on Costs

Expert Commentary

Full Decision Text

1 Brussels - Local Division ORD 33711/2025 ACT 7974/2025 ACT 581538/2025 UPC CFI 131/2025 UPC CFI 131/2025 Decision pursuant to R.156 RoP Of the Court of First Instance of the Unified Patent Court (UPC) Local Division Brussels Referred to 25 July 2025 Headnotes 1. An increase or decrease of the ceiling reflected in the administrative decision of 24 April 2023 "on the scale of recoverable costs ceilings" should be requested as early as possible in the proceedings in application of Art. 2 (4) and (5) of the said administrative decision. A request to this effect made during the costs proceedings should (in principle) be considered late. Such lateness may not apply to the defendant if they are only informed of the actual representation costs claimed by the claimant in the course of the costs proceedings. 2. The claimed costs are considered "facts". If they are disputed, it is incumbent (in application of Article 54 UPCA and R. 172.1. RoP) on the claimant to adduce the evidence to support the "fact" adduced. 3. The Court sees no reason or legal basis why the burden of proof and the standard of proof applicable to the claimant in the context of costs proceedings should be different from or lower than those applicable to other "facts" submitted in the course of UPC proceedings. The reference to any national practices of the country of the "representatives" (e.g. in light of the standard of proof of representation expenses) does not thwart the UPC principle on burden of proof and standard of proof as reflected in Article 54 UPCA (and R. 172.1. RoP). 4. If the "facts" ("costs") are disputed by the defendant and if the plaintiff has evidence to support the "facts" ("costs") put forward, it is bound to produce such evidence. Contrary to what R 156.1 RoP makes it appear, such evidence is not to be produced only if requested by the Tribunal. R. 156.1. RoP merely states that the Judge-Rapporteur has the power ("may") to have written evidence presented and does not relieve the Claimant of its burden of proof as reflected in Section 54 UPCA and R. 172.1. RoP. 5. In application of the Court's freedom of appreciation ("a large margin of appreciation for the Court") and equity considerations ("equity") provided for in the preamble to the administrative decision of 24 April 2023 "on the scale of recoverable costs ceilings", the Court may apply the ceiling (as a safety net) in respect of recoverable representation costs if the circumstances of the case justify it. 6. Translation costs (including translations made in the light of the defence and communication between clients and their legal representatives ("representatives") (or translations concerning decisions taken in the language of the proceedings) as well as the travel and accommodation costs of the legal representatives ("representatives") fall under representation costs. R. 152.1. RoP is to be interpreted broadly in this sense. Keywords: • Cost procedure • Representation expenses • Burden of proof and standard of proof • Ceiling for recoverable representation expenses2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 2 CLAIMANT(S): (1) OrthoApnea S.L., a company incorporated under Spanish law, with its registered office at Flauta Mágica 22, 29006 Malaga, Spain, (2) VIVISOL B BV, a company incorporated under Belgian law, having its registered office at Zoning Ouest 14, 7860 Lessines, Belgium, and registered in the Crossroads Bank for Enterprises with company number 0454.915.053; Represented by: Mter. van den Horst and Mter. Niemeijer, lawyers at Prinses Beatrixlaan 582, 2595 BM The Hague (The Netherlands) DEFENDANT(S): Mr residing at Belgium; Represented by: Mter. C. Ronse and Mter. K. Claeyé, lawyers at Havenlaan 86C, B414, 1000 Brussels (Belgium), and Mter. M.W. Rijsdijk and Mter D.E. Colenbrander, lawyers at Amstelplein 1 (Rembrandt Tower, 28th floor), 1096 HA Amsterdam (The Netherlands); PATENT(S) TO WHICH THE DISPUTE RELATES Patent no. Patent holder(s) EP 2 331 036 PANEL/DIVISION: The present Division (Brussels) with the panel consisting of: Judge-Rapporteur Samuel Granata Judge legally qualified Margot Kokke Judge legally qualified András Kupecz DECIDING JUDGE: The present procedural decision (order) was issued by the Judge-Rapporteur.2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 3 I. PROCEDURAL BACKGROUND AND ARGUMENTATION PARTIES 1. On 17 February 2025, the Claimants filed an application for payment of costs (R. 151 RoP) in CMS (ACT 7974/2025). This application sought an order that the Respondent pay the costs of the proceedings (specifically those relating to ACT 581538/2023 - UPC CFI 376/2023) estimated at €92,814.62, to be increased by statutory commercial interest from 7 days after service of the decision. 2. In essence, the Claimants justified their claim as follows: • The ceiling reflected in the decision "on the scale of recoverable costs ceilings adopted by the Administrative Committee on 24 April 2023" ("Ceilings Decision") c o n c e r n s € 38.000. The ceiling of €38,000 "is in stark contrast and disproportionate to the amount of actual costs". • The cost of representation (lawyers and office agents) amounts to€ 451,236.75. • The total costs (including costs of experts, conducting tests, translation costs, costs of interpreters at the hearing and other (travel and accommodation) costs amount to €480,751.37. • The ceiling is to be increased under Article 2.1. Ceilings Decision increased by 50% for cases of a value up to €1 million and this as there is a complex case and multilingualism, which brings the ceiling to €57,000. • The ceiling should then be increased by € 35,814 consisting of the following costs (it should already be indicated that a correct addition of the amounts below results in an amount of € 36,089.77): Costs Object Amount Evidence Costs experts (R. 153 RoP) Assistance Dr E VALQUEZ Various interviews with lawyers, x-rays of patient and hearing (online) 6 December 2004 € 2.200 EP02a In-vivo experiment Expert and patient costs and notary fees € 6.674,06 EP02b 8 anatomical model skulls € 1.594,05 EP02c Expert opinion after seizure regarding counterfeiting € 5.000 EP02d Translation and interpretation costs (R. 155 RoP Cii (simultaneous costs) € 2.800 EP03 ORTHOAPNEA (EP&C) € 7.483,16 EP03 La Gro € 7.630,92 EP03 Travel and accommodation expenses (R. 150 RoP) La Gro (The Hague - Brussels) ORTHOAPNEA (Malaga - Brusse) € 925 € 1.782,58 EP04 EP04 3. By (preliminary) procedural orders dated 25 February 2025 (I) and 13 March 2025 (II), the Judge- Rapporteur invited the parties in turn to submit further submissions. 4. The Respondent essentially argued as follows: • In the main order, the Respondent requests that the claims for payment of costs be dismissed in their entirety and this "having regard to fairness, lack of evidence and unreasonable and disproportionate nature". • Subordinate is argued by the Respondent as follows: o The ceiling was set in the Decision dated 17 January 2025 and this at€ 38,000. o The ceiling sets the upper limit. The request to increase is ceiling is not only unjustified but also belated. o The actual representation expenses have not been proved.2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 4 o The representation expenses claimed are neither reasonable nor proportionate. o The interlocutory proceedings (i.e. language change and equivalence argument) were decided in favour of the defendant and cannot be taken into account. Nor can the costs relating to the attachment of evidence be taken into account. o The remaining costs are unsubstantiated and contested with the exception of (i) the Plaintiffs' costs of being present on the pleading date and (ii) the costs of Mr VASQUEZ (Plaintiffs' party expert). 5. In their reply, the Claimants maintained the same position as reflected in their application and, despite the contested nature of most of the costs by the Respondent (see infra), did not file any additional submissions. 6. Before proceeding to a final assessment, the Judge-Rapporteur requested the parties, by (preliminary) procedural order dated 4 April 2025 (III), to state their position on the effect of the appeal lodged in the meantime (on 17 March 2025) by the Respondent (against the decision of the LD Brussels UPC of 17 January 2024 in ACT 581538/2023 UPC CFI 376/2023) on the present costs proceedings (ACT 7974/2025). The parties took position. 7. On 2 May 2025, an Interim Procedural Order (IV) was issued suspending the costs proceedings "until the Court of Appeal UPC has rendered a judgment on the merits or the dispute is otherwise terminated and concretely until the Judge Advocate is so notified". 8. By letter dated 10 July 2025, the Right Reporter was informed by the Plaintiffs that the UPC Court of Appeal on 2 July 2025 rendered the following decision (App 23563/2025 - APL 13061/2025 - UPC CoA 232/2025): I. allows the withdrawal of the appeal; II. declares that the appeal proceedings are closed; III. determines that this decision should be entered in the Register; IV. orders the appellant to bear the reasonable and proportionate costs incurred by OrthoApnea in connection with the appeal proceedings; V. declares OrthoApnea's request for a determination of the amount of the costs award inadmissible; VI. Declares the appellant's application to resume t h e costs proceedings pending before the Brussels Local Division inadmissible. 9. On 22 July 2025, the Respondent confirmed the above notice in the CMS and requested the Tribunal to resume the costs proceedings as follows: (2) In accordance with Preliminary Procedural Decision IV of 2 May 2025, Mr seeks the resumption of the present cost proceedings at first instance before the Brussels Local Division. (3) The positions taken by the Respondent in the present costs proceedings1 , as well as in the terminated appeal proceedings as regards costs (footnote 2), are hereby expressly restated and maintained in their entirety. Footnote 2 was reproduced as follows: In particular, the Rejoinder on Costs in Appeal pursuant to R.265 RoP dated 16 June 2025 in which Mr. requested the Court of Appeal that he not be ordered to reimburse the costs in question relating solely to internal conversations2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 5 of Respondents, and to dismiss this claim in its entirety, or to mitigate it substantially in the light of the circumstances and state of the proceedings at the time of the withdrawal of the appeal 10. In view of the above decision of the Court of Appeal UPC, the Plaintiffs should be regarded as the "successful party". 11. The conditions for lifting the suspension of the costs proceedings have been met and they may therefore be resumed. II. ASSESSMENT II.A. PRELIMINARY FRAMING OF THE RESPECTIVE PARTIES' APPLICATIONS AND DEFENCES II.A.1. SAISINE OF THE TRIBUNAL IN THE LIGHT OF THE PROCEEDINGS 12. In ACT 7974/2025, the General Court was only seized of the costs relating to the proceedings at first instance (giving rise to the decision in workflow ACT 581538/2023 - UPC CFI 376/2023). The plaintiffs did not extend these costs proceedings (with the Court not ruling on the possibility of doing so) to the costs of the appeal proceedings (giving rise to the decision by the Court of Appeal (App 23563/2025 - APL 13061/2025 - UPC CoA 232/2025). Any defence/position as to costs on appeal (as reflected in (3) of the Respondent's letter dated 22 July 2025) has no object. II.A.2. DECISION ON THE MERITS OF 17 JANUARY 2025 (AS TO VALUE OF THE CASE AND CEILING) 13. The Tribunal held as follows in the dispositive part of the decision dated 17 January 2025 (noting that "Defendants" in these proceedings are Claimants and "Claimant" in these proceedings is Respondent): "(i) Order to pay the proceedings and related proceedings 105. Given that the Claimant is unsuccessful, he should be ordered to pay the costs of these proceedings (in application of Art. 69(2) in conjunction with R. 118 (5)). 106. In application of R. 152 (2), it is already held that, in light of the valuation of the case at €250,000, the (reimbursement of the) representation costs should be determined at a ceiling of€ 38,000 (and this in itself in application of the "Schedule of Costs adopted by the Administrative Committee on 24 April 2023"). 107. As no elements are provided that allow the Tribunal to assess whether this ceiling was reached and the parties expressly state at the hearing to assess costs and damages in follow-up proceedings (R. 125), the Tribunal limits itself to a decision of principle on the reimbursement of representation expenses. 108. The defendants also claim payment of costs for "related proceedings". It is not clear to the Tribunal which proceedings are referred to and this all the more so since the Defendants are bringing a separate claim for damages as a result of the attachment of evidence (see para 109)."2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 6 14. It is clear from the above that the Tribunal set the ceiling on representation expenses at €38,000 but also that it was impossible in the state of the proceedings at the time to assess whether this ceiling was "reached". 15. No appeal was lodged against this decision and its assessment therefore became res judicata. II.A.3. PRINCIPLES REGARDING RAISING OR LOWERING THE CEILING 16. R. 150.1. RoP, as the legal basis for cost recovery, indicates which elements should be included in the cost decision. Which party should bear these costs should be completed in accordance with Article 69.2. UPCA. 17. The costs reflected in R. 150.1. RoP include the "costs incurred within the framework of the proceedings" such as (non-exhaustive) the costs for "simultaneous interpretation and costs incurred pursuant to Articles 173 (i.e. costs related to "judicial cooperation in obtaining evidence"), 180.1 (costs related to the Court's own experts), 185.7 (costs related to the expert's report and attendance m.in relation to an expert appointed by the Tribunal), 188 (costs associated with the hearing of an expert appointed by the Tribunal) and 201 (costs associated in relation to experiments ordered by the Tribunal) and, subject to Articles 152 to 156, the costs of the successful party, including court fees paid by that party [Article 151(d)]". The final part of the said rule refers to representation expenses (R. 152 RoP), expert fees (R. 153 RoP), witness fees (R. 154 RoP) and translator and interpreter fees (R. 155). 18. In application of R. 152.2. RoP (representation expenses), the Ceilings Decision was issued by the Administrative Committee on 24 April 2023. In addition to temporal provisions regarding when adjustments to the ceiling may be sought, the preamble to the Ceilings Decision indicates that the Tribunal should make use of following "safeguards" ("safeguards"), in addition to the ceiling, when applying the general rule as reflected in Art. 69.2. UPCA, expressly indicating that the Tribunal has a high degree of discretion in this regard: • Representation costs (and other costs) should be reasonable and proportionate in order for the "successful party" can claim them. • To make the general rule applicable, the stand-alone legal principle of "equity" should be used. • In cases of partial wins ("success") or in exceptional cases, the Tribunal may order parties to bear their own costs (or part of them). • Unnecessary costs for the Tribunal or a party should be borne by the party that caused them, which may mean that a "successful party" may be ordered to (re)pay these costs. Finally, this preamble (1) indicates that the ceiling should be considered as a safety net which is understood as the relative ceiling for representation costs (see2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 7 infra regarding requests for its increase or decrease). This is evident, inter alia, from the wording of the ceiling where reference is made to "up to (...)", which can be translated in procedural language as "increasing up to (...)". 19. Preamble (2) then indicates what elements can be taken into account to increase the ceiling pointing out the complexity of the case and the multilingualism of the proceedings. When requesting such an increase to a certain extent ("to a certain extent"), the requesting party (in this case, the Claimants) should take into account the financial capacities of all parties as well as the principle of the right of access to the Tribunal. 20. Preamble (3) indicates the cases in which the Tribunal may proceed to reduce the ceiling, providing elements to be taken into account by the Tribunal and, in particular, the (economic) survival of the applicant party (requesting a reduction - in this case, the Respondent) if the ceiling is applied. In doing so, the Tribunal should take into account all available information pointing out (non-exhaustively): the procedural conduct of a party, the ceiling in comparison with the annual turnover of both parties, the type of economic activity of both parties and the effect that a reduction of the ceiling would have on the other party (i.e. "successful party") 21. The above principles are then concretised in the articles of the Ceilings Decision. II.A.4. EVIDENCE STANDARD REGARDING THE COSTS THAT CAN BE RECOVERED IN ADDITION TO THE REPRESENTATION EXPENSES AND REGARDING THE CEILING (TO BE INCREASED OR DECREASED) 22. The (claimed payment of the) costs are put forward by the Claimants as "facts". These are disputed by the Respondent (with the exception of the travel and accommodation costs of the Claimants' (non-legal) representatives as well as the costs of expert E. VALQUEZ) are disputed. Given that these are disputed, in application of Article 54 UPCA and R. 172.1. RoP, it falls to the Claimants to submit the evidence to support the "fact" they have put forward. 23. It goes without saying that if the Plaintiffs themselves have such evidence, they are obliged to provide it to the Court. Contrary to what R. 156.1 RoP suggests, such evidence should not only be provided if the Court so requests. R. 156.1. RoP merely states that the Judge-Rappellant has the power ("may") to have written evidence presented to him (cf. Tilmann W. and Plassmann (ed), "Unified Patent Protection in Europe", Oxford University Press, 2018, p. 1823). However, Plaintiffs were sufficiently informed in Defendant's "Rejoinder to Request for Payment of Costs" (dated 10 March 2025) that the "facts" (other than the above) are disputed so that, in application of R. 172.1. RoP, they should bring the appropriate evidence to sufficiently prove the proffered "facts". This rule concerns an application of the general principle on burden of proof as reflected in Article 54 UPCA.2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 8 24. The Tribunal sees neither a reason nor a legal basis as to why the burden of proof and standard of proof in favour of the Claimants in the context of costs proceedings should be different or lower than that applicable to other "facts" submitted in UPC proceedings. Since, as Plaintiffs submit, "no specific conditions are imposed on the evidence to be adduced in respect of the specific costs incurred", a lower standard of proof should not be applied but rather the general standard of proof. Nor does the reference to any national practices of the country of the "representatives" (e.g. in light of the standard of proof of representation expenses) frustrate the general principle of Article 54 UPCA and R. 172.1. RoP. 25. These principles of proof, and more specifically the burden of proof on the Claimants (as to the amount of their claim and/or the increase of the ceiling), are of course equally applicable on the Respondent's side where it requests a reduction of the ceiling. Here, the burden of proof is on the Respondent to sufficiently convince the Tribunal that there are elements ("facts") before it that would justify any reduction in the ceiling or capping of other costs. II.A.5 TIMELINESS OF THE CLAIMED INCREASE AND DECREASE IN THE CEILING II.A.5.1. RELEVANT STATUTORY PROVISIONS 26. The following provisions are relevant in the assessment presented below: R. 104 (f) RoP: The interim conference shall enable the judge-rapporteur to: (j) decide the value of the proceeding for the purpose of applying the scale of ceilings for recoverable costs (Rule 152.3); Art. 2(4) - (5) Ceilings Decision states as follows: (4) A request to raise or lower the Ceilings shall be made as soon as possible and practicable in the proceeding. This may be with the Statement of claim by the plaintiff, or with the Statement of defence by the defendant but shall be lodged in sufficient time to enable the Court to make a decision before closure of the interim procedure. The request shall include all reasonably available evidence. (5) The request to raise or lower the Ceilings shall be dealt with by the Court without delay after having heard the parties and at the latest before closure of the interim procedure II.A.5.2. APPLICATION 27. The requested increase in the Ceilings shall be considered belatedly with the Court giving the following reasons:2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 9 • Both the RoP and the Ceilings Decision provide that a request for an increase must be assessed at the latest before the closure of the interim conference. It is expressly stated in Articles 2 (4) and (5) Ceilings Decision referred to a request in this regard in the Statement of Claim and Statement of Defence and all the way to an assessment under the Interim Conference. From the procedural decision ORD 598476/2023 (in application of R. 105.5 RoP), it appears that the parties only presented arguments regarding the value of the case (in application of R. 104.4. and 5. RoP). This was set at€ 250,000 in the said decision. • No arguments are offered that such procedural rules (regarding the temporal condition for making such an application) would not be in line with Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (hereinafter "Enforcement Directive"). The Claimants therefore had the option under Article 14 Enforcement Directive to request an increase in the ceiling. The Claimants failed to do so despite the fact that it can be assumed that the elements relied upon in the present proceedings (complexity of the proceedings as well as multilingualism) were sufficiently known to the Claimants before the General Court rendered the decision (containing the ceiling shown). • For the sake of completeness, it is otherwise stated that the determination of the cap is not in itself considered contrary to Article 14 Enforcement Directive as such cap is in line with the European Court of Justice's decision of 28 July 2026 (EUCJ 28 July 2016, United Video Properties Inc. v Telenet NV, C-57/15 (ECLI:EU:C:2016:611, https://e- justice.europa.eu/ecli/ECLI:EU:C:2016:611). 28. For the sake of completeness, it is indicated that, in the concrete circumstances of the case, the above applies only to any increases in the ceiling, since the concrete elements (i.e. representation expenses on behalf of the Claimants as well as the costs component of the representation expenses) became known to the Respondent only at the time the costs proceedings were commenced. This, and in particular applied to the representation expenses, is expressly reflected in the decision of 17 January 2025 where the Tribunal stated in margin 107 that "(...) no elements are provided that would allow the Tribunal to assess whether this ceiling was reached" and a decision on this matter will be taken in the context of the costs proceedings. In other words, since the Respondent had no knowledge of which costs would effectively be claimed as representation expenses, it can still request that the ceiling be reduced (if it provides sufficient evidentiary elements that the Tribunal can take into account in its decision in this regard - see § 22-25). II.A.6. "SUCCESSFUL PARTY" AND WHETHER OR NOT IT WOULD CARRY OVER TO INTERLOCUTORY PROCEEDINGS WHERE THE SUCCESSFUL PARTY'S CLAIMS WERE DISMISSED AS UNFOUNDED. 29. The plaintiffs filed 2 interlocutory proceedings in which, however, their alleged claims were dismissed. They are: • An application for a change of language which was dismissed by the President of the UPC Court of First Instance by a decision dated 5 March 2024, which was not appealed.2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 10 • An application to disregard the equivalence argument developed by the Respondent. This application was initially rejected by the Judge Advocate by order dated 8 July 2024 and subsequently upheld by the panel order dated 19 July 2024. The appeal was also finally dismissed by the UPC Court of Appeal on November 21, 2024. 30. The court held that the costs incurred by the Plaintiffs in relation to the above proceedings were their own litigation risk (and litigation strategy) on their behalf and, therefore, the costs in this regard are not included in the determination of the costs recoverable by the Plaintiffs. II.B. DEFENCE IN MAIN ORDER 31. In the main order, the Respondent requests that "having regard to fairness, lack of evidence and the unreasonable and disproportionate nature" the claim per se for payment of the costs of the proceedings "be rejected in its entirety". 32. Not only is such principal defence wholly unfair in the light of Article 69.2. UPCA but equally, the Respondent does not provide any evidence to support the grounds raised. Thus, the Court has insufficient evidence that an order to pay (in whole or in part) the claimed costs of the proceedings would jeopardise the economic survival of the Respondent. In this light, the Tribunal also points to p. 11 of the Statement of Defence with reference to the Respondent's financial statements (and not disputed by the Respondent): "(Respondent) has been running a successful orthodontics practice for many years with a substantial profit of EUR 265,995 in 2022 (...) with equity of EUR 612,912." 33. The main defence on behalf of the Defendant is therefore dismissed (whereby the argument regarding the lack of evidence will be specifically assessed below). II.C. THE REPRESENTATION EXPENSES (EXHIBIT EP01) 34. In support of the representation expenses (and, more specifically, the effective achievement of ceiling), the Respondent submit a unilateral summary of the services presented by their representatives ("representatives") in the form of a time-sheet. Where Claimants indicate that it would be unprecedented in "Dutch practice" that additional evidence would be necessary to prove that these costs were actually incurred (there is mention of a total presentation cost of €451,236.75), the Tribunal points out that we are not in "Dutch practice" but in a UPC practice where the burden of proof and standard of proof is reflected in the UPCA and the RoP (see § 22-25). It therefore falls to the Claimants to prove that these costs were actually incurred and, more specifically, that the Claimants bore these costs. Indeed, the subject matter of the costs proceedings is the payment of the costs borne by the Claimants and not those of its representatives without the submission of evidence of2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 11 fee notes (let alone evidence of their payment) in accordance with the time sheets. 35. On the other hand, the Court finds in all fairness and in application of the freedom of appreciation expressly provided for in the preamble of the Ceilings Decision ("a large margin of appreciation for the Court") that, in light of the proceedings conducted (and more specifically, the extensive written defence as well as the time spent and costs incurred in the context of the oral proceedings), the ceiling is to be considered as recoverable representation expenses and it is assumed that the representation expenses in the amount of this ceiling were paid by the Plaintiffs. The representation expenses are therefore awarded and this in the amount reflected in the ceiling (€38,000). Such assessment is further in line with the Ceilings Decision granting the Tribunal the option of using the ceiling as a "safety net". II.D. OTHER COSTS II.D.1. EXPERT COSTS (EXHIBITS EP02) 36. As indicated, the costs of expert VALQUEZ (Exhibit EP02a) are not disputed so that these costs can be awarded to the Claimants. They amount to €2,200. 37. The costs relating to the "in-vivo" experiment are proven only in respect of the costs charged by the notary. These are shown in document EP02b and amount to €374.06. However, the other costs related to the "in-vivo" experiment are not sufficiently proven. The claimants refer to the second sheet of the notary's invoice without it being at all clear that this is actually a second sheet of this invoice. Rather, this second sheet of piece EP02b appears to be a one-sided document on which the Tribunal cannot sufficiently control. It may further be indicated that these costs are apparently partly borne by the already accepted costs of expert VALQUEZ since VALQUEZ's invoice (piece EP02a) only mentions an amount of €1,100 and an amount of € 2,200 was awarded (see §36). 38. The claimed payment of the costs of creating the "eight anatomical model skulls" (piece EP02c) are rejected as unfounded. The claimants indicate that these model skulls were to be used in the context of the pleadings, but admit that they were ultimately neither used in the context of the pleadings nor submitted to the Tribunal. The production of these model skulls and the costs incurred cannot be causally related to the dismissal of the claims brought in the main proceedings. 39. The payment of the costs incurred in the evidence seizure ("Next Generation Security S.L." - Exhibit EP02d) are insufficiently proven as a matter of law and the claim for their payment is dismissed as unfounded. There is no mention in the submitted invoice regarding its object. Nor was any expert opinion on account of this service provider2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 12 submitted to the Tribunal. Therefore, the costs incurred in the light of the services provided by Next Generation Security S.L. cannot be causally related to the unfounded nature of the claims made in the main proceedings. II.D.2. TRANSLATION AND INTERPRETATION COSTS (DOCUMENT EP03) 40. The claim for translation costs are dismissed as unfounded. The Court reasons as follows: • These costs should be understood as representation costs and apparently concern (at least in the main) translations that had to be made by the plaintiffs in the light of their defence and in particular the communication between clients (plaintiffs) and their advisers (representatives) (or translations to the plaintiffs of decisions taken in the language of the proceedings). Moreover, it is noteworthy that EP03 also reflects translation costs relating to the appeal proceedings which cannot in any way form part of this cost decision relating to the costs at first instance (see § 12). In that sense, it is not sufficiently demonstrated which specific translations (and costs) were necessary in the light of the proceedings at first instance. As such, these are regarded as part of the costs of representation. Therefore, they do not concern costs as shown under R. 155 RoP that relate to necessary translation in light of the procedural language. • It is further indicated that the evidence put forward by the Claimants (Exhibit EP03) contains only one-sided time determinations emanating from the Claimants' counsel. There are no documents before us that constitute evidence that Claimants actually incurred or bore these costs. 41. The claim for payment of the costs paid for the "interpreters" is considered well-founded and determined in the amount of €1,500 in equity ("equity"). The Court reasons as follows: • These costs fall within the costs set out in R. 155 RoP. • Despite the fact that the Plaintiffs again fail to submit any invoice regarding the concrete costs paid and it is absolutely not for the Respondent to even calculate how much such interpreting services cost, the Tribunal was able to establish with the Respondent that simultaneous interpretation was indeed present at the oral hearing and that the Tribunal did not agree to pay such costs. • However, in the absence of any concrete evidence as to the hourly rate charged by the interpreters and a concrete check by the Tribunal as to whether those (charged) services conformed to the usual rates in Belgium (where the LD Brussels is located) being made impossible, the Tribunal finds that compensation (determined ex aequo et bono) should be awarded in the amount of €1,500. II.D.3. TRAVEL AND SUBSISTENCE EXPENSES (DOCUMENT EP04) 42. The claim seeking reimbursement of travel and subsistence expenses incurred by the Claimants' "representatives" are dismissed as unfounded. After all, the term "representation costs" (R. 152.1. RoP) should be interpreted broadly and understood as all costs of representation, including the travel and accommodation costs2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 13 (these prior to the oral hearing as well as in the context of the oral hearing before the Brussels District Court). The claimed costs of 'representatives' form part of the ceiling already assessed by the Court. 43. The claim for reimbursement of the Plaintiffs' travel and subsistence expenses is not contested, so that the claim for payment thereof is upheld in the amount claimed (€1,782.58). II.E. INCREASE WITH INTEREST 44. Both the representation expenses and the recovered costs relate to a reimbursement of costs on behalf of the "successful party" determined at the time the present costs decision was issued. 45. As regards the increase with interest claimed by the Claimants to which the Tribunal orders the Respondent, the Tribunal finds that neither the UPCA nor the RoP provide a legal basis for such an increase (see, to the same effect, LD Munich 10 January 2025, UPC CFI 249/2023 - ACT 50921/2023). II.F. DECISION 46. In the light of the foregoing, the Tribunal concludes that the Claimants' claims should be upheld to the following extent: Nature of the Costs Amount Representation expenses (ceiling)(R. 152 RoP) € 38.000 Experiment and expertise ("in vivo") (R. 153 RoP) € 374,06 Translation and interpretation costs (R. 155 RoP)(reduced ex aequo et bono) € 1.500 Travel and accommodation expenses € 1.782,58 TOTAL € 41.656,64 III. DECISION The Court orders Mr to pay the costs of the proceedings at first instance estimated at €41,656.64. Decision rendered on 25 July 2025 by the Judge-Rapporteur. Samuel GRANATA President Judge-Reporter Legally Qualified Judge (Samuel) (Rocco)Digitally signed by Samuel Rocco M Granata (M) (Granata) Date: 2025.07.25 14:17:49 +02'00' Registrar LD Brussels DÉBORAH Signature numérique de DÉBORAH PATRICIA (PATRICIA) (A) A PLETINCKX Date : 2025.07.25 PLETINCKX 14:10:32 +02'00'2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 14 Appeal (R. 221 RoP in conjunction with R. 157 RoP) A party aggrieved by any of the decisions referred to in R. 157 RoP may apply to the Court of Appeal for permission to appeal within 15 days of service of the relevant decision (R. 221.1 RoP). Enforcement (Art. 82 UPCA, R. 118.8 RoP, R. 354 RoP) A certified copy of the enforceable decision or order should be delivered by the Registrar, upon request of the executing party. Details of the decision Decision number ORD 33711/2025 ORD 8991/2024 Case number ACT 7974/2025 UPC Number UPC CFI 131/2025 Type-Action Application for payment of costs (R.150) Main Case (UPC Number) UPC CFI 376/2023 Main Case (Case Number) ACT 581538/2023 Main Case (Type of Action) Infringement claim2025-07-25 LD Brussels UPC CFI 131-2025 ACT 7974-2025 ORD 33711-2025 en-GB.pdfDeepL machine translation provided by www.veron.com

Key Holdings

  • Requests to increase or decrease recoverable cost ceilings must be made as early as possible, ideally before the closure of the interim procedure, and are generally considered late if made during costs proceedings, unless the defendant was not informed of actual costs earlier.
  • Claimed costs are considered "facts"; if disputed, the claimant bears the burden of proof (Article 54 UPCA, R. 172.1 RoP) to adduce evidence, and the standard of proof is not lower than for other facts in UPC proceedings. Evidence for disputed costs must be produced by the claimant, not only upon request by the Tribunal.
  • The Court has a large margin of appreciation and may apply the recoverable costs ceiling as a "safety net" based on equity considerations and the specific circumstances of the case.
  • "Representation costs" (R. 152.1 RoP) are interpreted broadly to include translation costs (for defence, client-representative communication, or decisions in the language of proceedings) and legal representatives' travel and accommodation costs, which fall under the cost ceiling.
  • The UPCA and RoP do not provide a legal basis for increasing awarded costs with interest.

Tags

  • Burden of Proof
  • Costs
  • Equity
  • Proportionality
  • Time Limits
  • Unified Patent Court

Related Rules

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