CooperSurgical v European Distribution Center Motiva (CFI, 4 December 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 4 December 2025, the Brussels Local Division allowed CooperSurgical to withdraw its infringement action (EP 3 302 292 B1), brought while an EPO opposition was pending, and ordered it to pay the defendants’ costs: EUR 105,757.90 to European Distribution Center Motiva and Establishment Labs, EUR 81,423.33 to PulseLavage. The decision shows the price of suing despite a negative preliminary opinion from the Opposition Division.

Question

Can a patentee that withdraws its action after the Opposition Division revokes the patent obtain an order that each party bear its own costs, on grounds of exceptional circumstances or unnecessary costs?

Decision

No. Suing during opposition proceedings is a fundamental right, which neither the UPCA nor the Rules prohibit, but a claimant that sues despite a negative preliminary opinion takes the risk. The defendants’ costs of defending the claim are not unnecessary (paragraphs 22 to 27). There were no exceptional circumstances: the withdrawal came two weeks after revocation, whereas a cautious claimant would have prepared for that outcome (paragraph 28). A withdrawing claimant is the unsuccessful party (paragraph 30). Costs must be reasonable, proportionate and proven. Assessing ex ante the value in dispute (EUR 4.25 million), the importance of the case, the stage of withdrawal and complexity, the division allowed EUR 100,000 in representation costs for the first two defendants, the EUR 400,000 ceiling applying to full proceedings (paragraphs 31 to 39).

Key points for practice

• Practical point: a patentee suing during an opposition must factor in the risk of bearing the defence costs if the patent is revoked, and withdraw promptly after an adverse decision.

Provisions applied

Agreement on a Unified Patent Court

Arts 33(10) and 69

Rules of Procedure

Rules 152, 265 and 295(a)

Case law cited

Carrier v BITZER Electronics, Court of Appeal, 28 May 2024, Court of Appeal, UPC_CoA_232/2025, Fujifilm v Kodak, Düsseldorf Local Division (UPC_CFI_355/2025 and UPC_CFI_186/2025), OrthoApnea, Brussels Local Division, 25 July 2025

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.