UPC CoA 232/2025 – Appellant v OrthoApnea S.L. and Vivisol B BV

Expert Commentary

Full Decision Text

1 Decision of the Court of Appeal of the Unified Patent Court on an application to withdraw the appeal handed down on 3 July 2025 CONTENT INDICATION The assessment of costs to be reimbursed following the withdrawal of a claim or appeal is subject to the provisions of Part 1, Chapter 5 Pr, pursuant to R. 265.2(c) Pr. The amount of costs to be reimbursed must therefore be determined in cost proceedings within the meaning of Part 1, Chapter 5 Pr. Pursuant to R. 151 Pr, such proceedings may be instituted within one month of service of the decision on the application for withdrawal. KEYWORDS Appeal; withdrawal of appeal; costs proceedings after withdrawal of appeal THE APPELLANT (PLAINTIFF IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) Hereinafter: appellant, represented by Christophe Ronse (ALTIUS Advocaten) DEFENDANTS IN THE APPEAL (DEFENDANTS IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) 1. ORTHOAPNEA S.L. Flauta Mágica 22, 29006 Malaga, Spain 2. VIVISOL B BV Zoning Ouest 14, 7860 Lessines, Belgium Reference numbers App 23563/2025 APL 13061/2025 UPC CoA 232/20252025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdf2025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 2 Hereinafter jointly referred to as: OrthoApnea, represented by Marleen van den Horst, lawyer (La Gro Geelkerken) SUBJECT TO THE DISPUTE European patent 2 331 036 LANGUAGE OF THE CASE Dutch CHAMBER AND DECIDING JUDGES Chamber 1a Klaus Grabinski, President of the Court of Appeal Peter Blok, Legally Qualified Judge and Judge-Rapporteur Emmanuel Gougé, Legally Qualified Judge CONTESTED DECISION OF THE COURT OF FIRST INSTANCE "Decision on the merits" of the Brussels local division, of 17 January 2025 Reference numbers: ACT 581538/2023 UPC CFI 376/2023 ORD 598478/2023 FACTS AND REQUESTS OF THE PARTIES 1. By decision of 17 January 2025, the Brussels Local Division of the Court of First Instance dismissed the infringement claims filed by the appellant against OrthoApnea and ordered the appellant to pay the costs of the proceedings (hereinafter: the contested decision). 2. On 17 February 2025, OrthoApnea filed an application for costs of proceedings with the Brussels Local Division pursuant to R. 151 of the Rules of Procedure of the Unified Patent Court (hereinafter: Pr) (ACT 7974/2025 UPC CFI 131/2025). 3. On 8 April 2025, the appellant filed an appeal against the spending decision. 4. By order dated 2 May 2025, the Brussels Local Division suspended the costs proceedings mentioned in 2 above until the Court of Appeal rules on the merits or the dispute is otherwise terminated. 5. On 16 May 2025, the appellant filed an application asking the Court of Appeal to (i) withdraw the appeal against the contested decision, (ii) terminate the appeal proceedings2025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdf2025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 3 close; and (iii) resume the litigation costs proceedings pending before the Brussels Local Division. 6. In its reply to the application, OrthoApnea asked the Court of Appeal to allow the withdrawal of the appeal and to order the appellant to pay the costs of the appeal proceedings in the amount of €2,693.33, or at least an amount to be determined in good time. 7. The appellant requested that the order for costs be dismissed or substantially reduced in the light of the nature and state of the proceedings. GROUNDS FOR THE DECISION 8. Under R. 265.1 Pr, a plaintiff may withdraw his claim as long as there is no final decision. This provision applies by analogy to the withdrawal of an appeal. 9. The Court of Appeal will allow the withdrawal of the appeal against the contested decision since OrthoApnea has stated that it does not object to it. This will entail the termination of the appeal proceedings. The decision should be entered in the Register (R. 265.2(b) Pr). 10. Given the withdrawal, the appellant must be regarded as the unsuccessful party on appeal. Under the main rule of art. 69(1) of the Agreement on the Unified Patent Court (hereinafter: EOGO), the appellant must therefore bear the costs incurred by OrthoApnea for the appeal proceedings, in so far as they are reasonable and proportionate. 11. In assessing the reasonableness and proportionality of the costs of the proceedings incurred by OrthoApnea, account will have to be taken of the fact that the appellant withdrew the appeal at an early stage of the appeal proceedings. However, that fact does not preclude OrthoApnea from having incurred reasonable and proportionate costs. The equity rule of Article 69(1) EOGO therefore does not compel the dismissal of an order against the appellant for costs in this case. 12. OrthoApnea's claim to order the appellant to pay an amount of € 2,693.33 in legal costs, or at least an amount to be determined in good court, is inadmissible. The estimation of the procedural costs to be reimbursed after the withdrawal of a claim or appeal is subject to the provisions of Part 1, Chapter 5 Pr (Court of Appeal 3 July 2025, UPC CoA 153/2025 APL 8639/2025, Tiroler Rohre v SSAB) in accordance with R. 265.2(c) Pr. The Court of Appeal will therefore decide in this decision only that the appellant should bear the costs of the appeal proceedings. The amount of the2025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdf2025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdfDeepL machine translation provided by www.veron.com 4 costs must be determined in cost proceedings within the meaning of Part 1, Chapter 5 Pr. Pursuant to R. 151 Pr, OrthoApnea may bring such proceedings before the Brussels Local Division within one month of service of this decision. 13. The appellant's application to resume the proceedings already pending regarding the costs of the proceedings at first instance is also inadmissible. That is for the Brussels Local Division to decide. DECISION The Court of Appeal 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 the request of OrthoApnea to fix of the height of the reimbursement of costs inadmissible; VI. declares the appellant's application to resume the costs procedure pending before the Brussels Local Division inadmissible. This decision was pronounced on 3 July 2025. Digitally signed by KLAUS STEFAN MARTIN Grabinski MARTIN Grabinski Date: 2025.07.03 10:24:45 +02'00' Klaus Grabinski, President of the Court of Appeal Peter Digitally signed by Peter Hendrik Blok (Hendrik) (Blok)Date: 2025.07.03 12:38:14 +02'00' Peter Blok, Legally Qualified Judge and Judge-Rapporteur EMMANUEL, LUCIEN, RENÉ GOUGÉ Signé numériquement par EMMANUEL, LUCIEN, RENÉ GOUGÉ Date : 2025.07.03 09:05:22 +02'00' Emmanuel Gougé, legally qualified judge KLAUS STEFAN2025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdf2025-07-03 CoA Luxembourg UPC CoA 232-2025 App 23563-2025 ORD 23914-2025 en-GB.pdfDeepL machine translation provided by www.veron.com

Key Holdings

• The Court allows the withdrawal of the appeal.
• The appeal proceedings are declared closed.
• The appellant is ordered to bear the reasonable and proportionate costs incurred by OrthoApnea in connection with the appeal proceedings.
• OrthoApnea's request to fix the amount of cost reimbursement is declared inadmissible, as the amount must be determined in separate cost proceedings.
• The appellant's application to resume the costs procedure pending before the Brussels Local Division is declared inadmissible.

Tags

• Appeal
• Costs
• Rules of Procedure
• Withdrawal of Appeal

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