Cost reim­bursement before the UPC: latest develop­ments

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Clear guidelines on reimbursement of costs before the UPC

The Unified Patent Court is developing increasingly clear guidelines on cost practice – from the reimbursement of court fees paid to the determination of the value in dispute to the question of which costs are reimbursable and how far the control of the appeal court extends.

Reimbursement of costs in the event of early termination of proceedings

  • Withdrawal before the end of the written proceedings: 60% reimbursement

Pursuant to Rules 370.9(b)(i) and 370.11 EPGVerfO, the UPC will reimburse 60% of the court fees if the proceedings are terminated before the end of the written proceedings. In Hand Held Products, Inc. v. Scandit AG (UPC_CFI_76/2024, Local Chamber Düsseldorf, March 21, 2025), both parties had mutually withdrawn their claim and counterclaim. The court ordered that 60% of the fees paid be refunded to the party that had paid them (see Rule 370.11 VerfO).

  • Appeal court confirms this standard

In Tandem Diabetes Care Europe B.V. v. Roche Diabetes Care GmbH (UPC_CoA_120/2025, Paris Court of Appeal, July 3, 2025), the parties terminated the proceedings by settlement before the conclusion of the written procedure. The court then granted a 60% refund of the court fees to the plaintiff (Rule 370.9(c)(i) VerfO).

  • Withdrawal after the end of the written procedure: only 40%

The case Harvard College v. NanoString (UPC_CoA_24663/2025, Court of Appeal, May 28, 2025) shows how relevant the timing of the termination of proceedings is for the amount of the reimbursement of costs. NanoString withdrew its appeal only after the written proceedings had been completed but before the oral hearing had begun. The court ruled that, under these circumstances, only 40% of the appeal fee was to be reimbursed, in accordance with Rule 370.9(b)(ii) of the Rules of Procedure.

  • No refund in case of settlement after oral proceedings:

In Roche v. Tandem Diabetes Care (UPC_CFI_504/2023), the court refused to refund court fees because the oral hearing had already been concluded at the time of the settlement. In the court’s view, the proceedings were therefore considered concluded within the meaning of Rule 370.9(c)(iii) of the Rules of Procedure. A pro rata reimbursement of 20% of the court fees was also rejected due to the high court costs.

Determination of the value in dispute

With regard to the allocation of costs, the determination of the value in dispute is also decisive, as it limits both court fees and reimbursement of costs. In Progress Maschinen & Automation AG v. AWM s.r.l. (UPC_CFI_178/2024, Local Chamber Milan, July 8, 2025), the court set the value in dispute at EUR 2,000,000 in the absence of precise information, based on the plaintiff’s estimate. The court emphasized that the value in dispute must be measured in relation to the circumstances at the time the action was brought and that a subsequent increase or decrease can only be considered if it can be clearly proven.

Review of the decision on costs by the court of appeal

In the case of Tiroler Rohre GmbH v. SSAB Swedish Steel GmbH (UPC_CoA_153/2025, Court of Appeal, July 3, 2025), the UPC clarified that the Court of Appeal only marginally reviews a cost determination by the lower court. The focus is on whether the costs determined by the rapporteur are “reasonable and appropriate” or whether they clearly violate Article 69 EPGÜ. A complete reassessment does not take place.

Amount of reimbursable costs

According to Rule 152 EPGVerfO, reasonable and proportionate costs of representation are reimbursable  up to a limit set  by the Administrative Committee.

In Fujifilm Corporation v. Kodak GmbH & Co. KG (UPC_CFI_355/2023, UPC_CFI_186/2025, Local Chamber Düsseldorf, July 9, 2025), the court once again clarified that only costs actually incurred are reimbursable.

Costs for unnecessary or purely strategic measures are expressly not reimbursable – even if they were incurred internally. Representation costs in cost proceedings, on the other hand, are not reimbursable, as this would give the parties an incentive to invest more resources than necessary in the summary proceedings on the decision on costs pursuant to R. 150 et seq. EPGVerfO, which would lead to inefficient proceedings.

If the parties agree during the oral hearing to increase the upper limit for reimbursable costs, it is not possible to challenge the setting of the upper limit in the cost determination proceedings.

Conclusion

The decisive factor for the reimbursement of court fees is therefore the stage of the proceedings at the time of settlement. Anyone who withdraws a lawsuit early or reaches a settlement saves 60%—those who are too late receive only 40% or no reimbursement at all. The court also remains strict when it comes to the allocation of costs: only what is necessary will be reimbursed.