Nordic-Baltic Regional Division
UPC_CFI_380/2023

APP_35268/2025
ORD_35847/2025
APP_35269/2025
ORD_35846/2025

Order
of the Court of First Instance of the Unified Patent Court
Nordic-Baltic Regional Division
issued on 2 September 2025

Headnote: In case of partial success, there are different ways to express to what extent the (most) successful party shall have its legal costs and other expenses reimbursed by the (most) unsuccessful party. Neither the Agreement on a Unified Patent Court (UPCA) nor the Rules of Procedure (RoP) prevents that the Defendants are ordered to reimburse 100 % of the Claimant’s reasonable and proportionate costs in the infringement action and 75 % of the Claimant’s reasonable and proportionate costs in the counterclaim(s) for revocation, without deduction for any share of the Defendants’ costs, when the Court finds that this is an equitable (fair) distribution of the costs.

Keywords: legal costs, partial success

PARTIES OF THE PROCEEDINGS
CLAIMANT
1) EDWARDS LIFESCIENCES CORPORATION - One Edwards Way - 92614 - Irvine, California – US
Represented by Jens Olsson (Gulliksson), Siddharth Kusumakar, Bryce Matthewson & Adam Rimmer (Powell Gilbert), Bernhard Thum & Jonas Weickert (Thum & Partners)

DEFENDANTS
1) MERIL LIFE SCIENCES PVT LIMITED - Bilakhia House, Survey No. 135/139, Muktanand Marg, Chala - Gujarat 396191 - Vapi – IN
2) MERIL GMBH - Bornheimer Strasse 135 – 137 - D – 53119 - Bonn – DE
3) SMIS INTERNATIONAL OÜ - Harju maakond, Tallinn, Kesklinna linnaosa, Kaarli pst 9-1a -
10119 - Tallinn – EE
4) SORMEDICA, UAB - V. Kuzmos str. 28 - LT-08431 - Vilnius – LT
5) INTERLUX, UAB - Aviečių g. 16 - LT-08418 - Vilnius – LT
6) VAB-LOGISTIK, UAB - Laisvės pr. 60 - LT-05120 - Vilnius – LT
Represented by Andreas von Falck, Alexander Klicznik, Kerstin Jonen, Roman Würtenberger, Lars-
Fabian Blume, Beatrice Wilden & Friederike Hermes (Hogan Lovells), Karin Westerberg & Julia
Ericsson (Sandart)

PATENT AT ISSUE
EP 3 769 722

DIVISION
Nordic-Baltic Regional Division

DECIDING JUDGES – FULL PANEL
Presiding judge & judge-rapporteur Stefan Johansson
Legally qualified judge Kai Härmand
Legally qualified judge Mélanie Bessaud
Technically qualified judge Stefan Wilhelm

LANGUAGE OF THE PROCEEDINGS
English

SUBJECT-MATTER
Request for Rectification of Decision of 21 July 2025

BACKGROUND
1. On 21 July 2025, the Court issued its decision on the merits in case UPC_CFI_380/2023, which included an Infringement Action (ACT_582093/2023) and Counterclaims for Revocation (CC_14226/2024, CC_14317/2024, CC_14320/2024, CC_14323/2024, CC_14325/2024, CC_14326/2024). In the decision, the Court found inter alia that the patent as granted was invalid but upheld it as amended by an auxiliary request. The Court also found that the patent as amended was infringed.
2. The parties had requested that the opposing party/parties should bear the costs of the proceedings.
3. Regarding costs, the grounds for the decision includes inter alia the following:

336. In this case, Edwards is the successful party in the action on infringement and largely also in the counterclaim on revocation, although independent claim 1 was slightly amended and the dependent claims were deleted.

337. Edwards has requested that the Court orders that the Defendants and each of them are to bear the legal costs of these proceedings as well as all other costs incurred by the Claimant. Hence, Meril et al. should be obliged to reimburse Edwards for all (100 %) its reasonable and proportionate legal costs and other expenses in the infringement action and for most (75 %) of the costs in the counterclaim for revocation.

338. The fact that Edwards, during the proceeding, has chosen to withdraw its request for remedies (in particular compensation) to the extent they were based on alleged infringements committed before 7 June 2023, when the Patent was granted, and has confirmed/clarified that it does not seek remedies in respect of countries that were not parties to the UPCA when the action was initiated, should not affect Edwards right to reimbursement of costs (cf. the preliminary objection, but also e.g. the order of the Court of Appeal on 2 June 2025 in case UPC_CoA_156/2025).

4. The operative part of the decision includes inter alia the following:

XII) The Court orders the Defendants and each of them to bear the reasonable and proportionate legal costs and other expenses incurred by Edwards in the infringement proceedings, and to bear 75 percent of the reasonable and proportionate legal costs and other expenses incurred by Edwards in the proceedings on the counterclaim for revocation, in accordance with Article 69 UPCA.
XIV) The Court dismisses all other requests.

REQUESTS
5. The Defendants have requested that
the decision of the Court of First Instance (Nordic Baltic Regional Division) of 21 July 2025, order ORD_598566/2023, ORD_68830/2024 et al., issued in cases ACT_582093/2023, CC_14323/2024, CC_14326/2024, CC_14317/2024, CC_14320/2024, CC_14325/2024, CC_14226/2024 in the proceedings registered under case no. UPC_CFI_380/2023 (the "Decision"), be rectified, and in item XII) of the Decision, the following paragraph be added:

"The Court orders Edwards to bear 25 percent of the reasonable and proportionate legal costs and other expenses incurred by the Defendants in the proceedings on the counterclaim for revocation, in accordance with Article 69 UPCA."

6. The Defendants’ reason for this request can be summarized as follows.
When allocating the costs, the Court omitted to expressly mention Claimant's (Edwards') obligation to bear part of the reasonable and proportionate legal costs and other expenses incurred by the Defendants. This amounts to an obvious slip within the meaning of Rule 353 RoP because there is a discrepancy between the intended decision and its material representation (external expression) which can be deduced from a comparison between the part affected by the error (i.e. item XII) of the Decision) and the considerations contained in the reasoning of the Decision.

Where a party succeeds only in part, the Court may order that costs be apportioned equitably or that the parties bear their own costs (with the latter obviously not being relevant here), see Article 69(2) UPCA. An apportioning of costs, as aimed at by the Court, requires an all-encompassing distribution of the costs of the proceedings. Given that, it is already clear that the Court conversely intended that Defendants should also be entitled to the reimbursement of a part of their reasonable and proportionate legal costs and other expenses. On the basis of the finding of the Court that Claimant shall be entitled to reimbursement of 75 percent of its reasonable and proportionate legal costs and other expenses incurred in relation to the counterclaim proceedings, that part amounts to 25 percent.

That this was the intention of the Court is further confirmed by the fact that, under UPC law, costs must be allocated between the parties completely without any portion (here, 25 percent of the costs incurred in relation to the counterclaim proceedings) remaining unallocated. This has already been outlined above with reference to Article 69(2) UPCA. Article 1(4) of the Scale of ceilings for recoverable costs (providing that in case of partial success, the ceiling applicable in the case shall correspond to the proportion of success of the party seeking cost recovery) again underlines that an apportioning requires an all-encompassing distribution of the costs of the proceedings by referring to the "the proportion of success". The applicable provisions leave no room for a decision under which part of the costs remain unallocated.
Since this is not reflected in the Decision, but because it was the clear intention of the Court that Claimant also bears a share in costs as is apparent from the considerations contained in the reasoning of the Decision and in line with the applicable laws, the rectification of this mere oversight is to be ordered.

REASONS FOR THE ORDER

7. According to Article 69.1 of the Agreement on a Unified Patent Court (UPCA), the starting point is that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity requires otherwise, up to a ceiling set in accordance with the Rules of Procedure. This main rule does not specify who shall bear the reasonable and proportionate legal costs of the unsuccessful party. However, it is obvious that the intention here is that the unsuccessful party shall bear its own costs (unless Article 69.3 is applied).

8. Where a party succeeds only in part, the Court may – according to Article 69.2 UPCA – order that costs be apportioned equitably or that the parties bear their own costs. This means that where a party succeeds only in part, the (most) successful party might not have all its reasonable and proportionate legal costs and other expenses reimbursed (cf. Article 69.1 UPCA).

9. There are different ways to express how much the (most) successful party shall be reimbursed in case of partial success. In this case, the Court has found that an equitable (fair) distribution of costs is that the Defendants reimburse 100 % of the Claimant’s reasonable and proportionate costs in the infringement action and 75 % of the Claimant’s reasonable and proportionate costs in the counterclaim(s) for revocation, without deduction for any share of the Defendants’ costs. The decision – including items XII) and XIV) in its operative part – has the effect that the Claimant shall bear the remaining 25 % of its reasonable and proportionate costs in the counterclaim(s) for revocation and that the Defendants shall bear all its own costs. Neither the UPCA nor the Rules of Procedure prevents such an allocation of costs.
10. Accordingly, the decision does not include an obvious slip in this respect. The requests for rectification shall be dismissed.

ORDER
11. The requests for rectification are dismissed.

Issued in Stockholm on 2 September 2025.

INFORMATION ABOUT APPEAL
The order may only be appealed together with an appeal against the decision on the merits (Rule 220.2 RoP).

ORDER DETAILS
Order no. ORD_35847/2025, ORD_35846/2025
Action no. ACT_ 582093/2023, CC_14226/2024
UPC number: UPC_CFI_380/2023
Action type: Infringement Action & Counterclaim(s) for Revocation
Application No.: APP_35268/2025, APP_35269/2025
Application Type: Requests for Rectification