OrthoApnea v *** (CFI, 25 July 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 25 July 2025 (UPC_CFI_131/2025), Judge Granata, judge-rapporteur of the Brussels Local Division, ordered the defendant, an individual whose name is redacted, to pay OrthoApnea and VIVISOL B EUR 41,656.64 for the first-instance costs of the infringement action on EP 2 331 036, against EUR 92,814.62 claimed. The cost proceedings, stayed pending appeal, resumed after the appellant withdrew on 2 July 2025. The order confirms that costs are facts to be proven and that an increase of the ceiling must be sought early.

Question

Which costs may the successful party recover where the other side disputes them, and may the EUR 38,000 ceiling set in the merits decision be raised at the assessment stage?

Decision

As the costs were disputed, the claimants had to prove them (Article 54 UPCA, Rule 172.1 RoP), with no lower standard (paragraphs 22 to 25). The request to raise the ceiling to EUR 57,000 came too late: it should have been made at the latest before the interim conference closed, since the complexity and multilingual nature of the case were known (paragraphs 26 and 27). Costs of the interlocutory matters the claimants lost (language, equivalence) are excluded (paragraphs 29 and 30). The EUR 38,000 ceiling is awarded for representation, which covers translations and the representatives’ travel (paragraphs 34, 35, 40 and 42). The court also allows EUR 374.06 for the experiment, EUR 1,500 for interpreting set ex aequo et bono and EUR 1,782.58 for the parties’ travel. Interest is refused for lack of a legal basis (paragraph 45). Paragraph 36 notes that the expert’s EUR 2,200 is undisputed, yet that sum does not appear in the total at paragraph 46.

Key points for practice

• An increase of the ceiling for representation costs must be requested in the written pleadings, at the latest before the interim conference ends.
• Practical point: each cost item must be supported by an invoice and linked to the dispute, otherwise it is rejected or reduced on an equitable basis.

Provisions applied

Agreement on a Unified Patent Court

Art. 54 and Art. 69(2)

Rules of Procedure

Rules 104(f), 150, 151, 152, 153, 155, 156, 172.1 and 221.1

Directive 2004/48/EC

Art. 14

Other provisions

Decision of the Administrative Committee of 24 April 2023 on the scale of ceilings for recoverable costs, Art. 2(4) and (5)

Case law cited

Edwards Lifesciences v Meril, Munich Local Division, 10 January 2025 (UPC_CFI_249/2023), CJEU, 28 July 2016, United Video Properties, C-57/15

Related decisions

• OrthoApnea, 17 January 2025, decision on the merits (infringement).
• OrthoApnea, 2 May 2025, earlier order in 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.