Avago Technologies International Sales v Tesla Germany (CoA, 15 January 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 15 January 2025, issued in German in the joined appeals UPC_CoA_629/2024, 631/2024 and 632/2024, the Court of Appeal permitted the withdrawal of Avago’s infringement action and of Tesla’s counterclaims for revocation concerning EP 1 612 910, following the Hamburg Local Division’s decision of 26 August 2024. Two principles emerge: withdrawal under Rule 265 remains available on appeal, and withdrawal of the counterclaim for revocation renders the applications to amend the patent devoid of purpose.

Question

May a party withdraw its action after a first-instance decision on the merits that is under appeal, and what becomes of applications to amend once the counterclaim for revocation is withdrawn?

Decision

Since the first-instance decision is not final, it does not bar withdrawal, which is excluded only once the decision has become final. The Court left open whether the opponent’s consent is always required at that stage, as both parties had consented (paragraphs 11 to 13). No costs decision was needed, the parties having waived one (paragraph 14). The applications to amend became moot (paragraph 15). The proceedings were declared closed and 60% of the appeal fees refunded to Avago (paragraph 16).

Key points for practice

• Consented mutual withdrawals allow the appeal to be closed without a ruling on the merits, since the first-instance decision is not final (paragraphs 12 and 13).
• Practical point: withdrawal before the close of the written procedure on appeal carries a 60% refund of court fees (Rule 370.9(b)(i)), it must be applied for expressly.

Provisions applied

Rules of Procedure

Rules 265.1, 265.2 and 370.9(b)(i)

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.