Appellant*** v ORTHOAPNEA (CoA, 3 July 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 3 July 2025, given in Dutch, the Court of Appeal (Grabinski, Blok, Gougé) allowed the withdrawal of the appeal against the Brussels Local Division’s decision of 17 January 2025, which had dismissed the infringement actions on EP 2 331 036 against OrthoApnea S.L. and Vivisol B (UPC_CoA_232/2025). The interest lies in costs: an appellant who withdraws bears the costs of the appeal even where it withdraws early, and their amount is then fixed before the first instance division.

Question

Must an appellant that withdraws promptly, with no objection from the respondent, bear the costs of the appeal, and may the Court of Appeal fix their amount or order the resumption of the cost proceedings stayed at first instance?

Decision

The Court allowed the withdrawal by analogy with Rule 265.1 and declared the appeal proceedings closed (paragraphs 8 and 9). The appellant, treated as the unsuccessful party, must bear OrthoApnea’s reasonable and proportionate costs under Art. 69(1) UPCA, the early withdrawal bears on the amount, not on the principle (paragraphs 10 and 11). The request to fix costs at EUR 2,693.33 was inadmissible: OrthoApnea must apply to the Brussels Local Division within one month of service (Rules 265.2(c) and 151, paragraph 12). The request to resume the first instance cost proceedings was also inadmissible (paragraph 13).

Key points for practice

• Practical point: withdrawing an appeal does not avoid costs, the respondent must then bring cost proceedings before the first instance division within one month, as that division alone fixes the amount.

Provisions applied

Agreement on a Unified Patent Court

Art. 69(1)

Rules of Procedure

Rules 151, 265.1 and 265.2

Case law cited

Tiroler Rohre v SSAB Swedish Steel, 3 July 2025 (Court of Appeal)

Related decisions

• *** v OrthoApnea S.L, 17 January 2025, Brussels Local Division decision on the merits under appeal.
• OrthoApnea S.L v ***, 2 May 2025, stay of the cost proceedings.

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.