Meril Life Sciences v Edwards Lifesciences (CoA, 4 October 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 4 October 2024 (UPC_CoA_2/2024), the Court of Appeal, sitting as a panel of five presided over by Klaus Grabinski, dismissed Meril’s appeal against the order of the Munich Local Division of 19 December 2023, which had ordered Meril to bear the costs of provisional measures proceedings brought by Edwards Lifesciences (EP 3 763 331) and closed after Meril gave a cease and desist undertaking. The Court held that the successful party within the meaning of Article 69(1) UPCA is determined by the parties’ requests and the content of the undertaking: where the defendant, after proceedings have begun, undertakes to comply with the claimant’s requests, the claimant is as a rule the successful party, with no need to examine admissibility or merits. The ruling matters for any exit strategy based on an undertaking: giving one after contesting the application offers no protection on costs.

Facts and procedure

After an unanswered warning letter of 19 June 2023, Edwards applied for provisional measures on 18 July 2023. Meril filed a 107-page objection, to which Edwards replied in 69 pages. On 25 September 2023 Meril gave a cease and desist declaration and undertaking, without acknowledging any legal obligation, which Edwards accepted on 29 September, the parties agreed that the case could be closed under Rule 360, leaving costs to the panel. The Munich Local Division found the application moot, ordered Meril to bear the costs up to EUR 200,000, set the value in dispute at EUR 1,500,000 and granted leave to appeal. Meril sought an order that Edwards bear the first-instance costs. Its request for suspensive effect had been refused on 18 January 2024 (paragraph 10).

The applicable law

The unsuccessful party bears the reasonable and proportionate costs of the successful party (Article 69(1) UPCA), unless equity requires otherwise, in particular in case of partial or exceptional success (Article 69(2)) or where costs were caused unnecessarily (Article 69(3)). The regime implements Article 14 of Directive 2004/48, read with Article 3. Rule 360 allows the Court to dispose of an action that has become devoid of purpose.

Question

Where proceedings end following the defendant’s cease and desist undertaking, which party is successful within the meaning of Article 69(1), and can an equity exception shift costs to the claimant?

Decision

Disposal under Rule 360 does not exclude the general rule (paragraphs 13 and 23). The successful party is determined by the particular features of the proceedings, in particular the requests and the content of the undertaking. Where the defendant undertakes to comply with the requests, the undertaking itself implies that they have been met and the claimant is as a rule the successful party (paragraph 14). An exception may arise where the claimant sues without a prior warning and the defendant gives an undertaking at the outset (paragraph 15). The German word “abweisen” in Rule 360 does not make the defendant the successful party, the English and French versions being neutral (paragraph 16). This reading is consistent with Directive 2004/48 and Article 47 of the Charter, leaving no reasonable doubt that would warrant a reference to the CJEU (paragraphs 17 to 22). Edwards achieved the main aim of its application, the cessation of sales of the contested products (paragraph 24), Meril failed to show that the application was manifestly inadmissible or unfounded (paragraphs 26 and 27). No equitable ground required Edwards to bear the costs: Meril gave cause for the action by rejecting the warning letter and only gave the undertaking after a lengthy objection that forced Edwards to reply (paragraph 29). The appeal was dismissed, Meril was ordered to bear the costs of the appeal and the value of the appeal was set at EUR 200,000.

Key points for practice

• An undertaking given during the proceedings makes the claimant, as a rule, the successful party without any examination of the merits, whatever the “without acknowledging a legal obligation” reservation (paragraphs 14 and 24).
• The equity exception concerns a claimant who sues without warning a defendant that undertakes at once. It does not help a defendant that first contested the application (paragraphs 15 and 29).
• A defendant may decline to give the undertaking or make it conditional on the claimant bearing the costs, which safeguards its right to an effective remedy (paragraph 21).
• Practical point: a defendant minded to give an undertaking should do so in response to the warning letter, or negotiate costs within the undertaking itself.

Provisions applied

Agreement on a Unified Patent Court

Art. 69(1), (2) and (3)

Rules of Procedure

Rule 360

Directive 2004/48

Arts 3 and 14, recital 17

Other provisions

Charter of Fundamental Rights of the European Union, Arts 47 and 52(1)

Case law cited

CJEU, Diageo Brands, C-681/13, 16 July 2015

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.