United Video Properties - the limits to ceilings for costs orders under the UPC Agreement

17-10-2016 Print this page
B914659

BIE 2016-9, p. 253-254, Wouter Pors: "What will be the consequences of the United Video Properties judgement for the system of cost orders at the Unified Patent Court (UPC)? Can the ceilings of Article 69 of the UPC Agreement (UPCA) be maintained, or is another, more flexible solution needed? Clearly, the Court has said that the winning party is entitled to a reasonable amount of costs, inter alia based on the actual work spent on the case. [...]

So what is the solution? Should the Preparatory Committee merely raise the ceilings, but keep them as "absolute caps"? I don't think that would be the solution, because it would not solve the problem that such ceilings do not take the circumstances of the case into account. Therefore, in my view, the Preparatory Committee should accept that the "ceilings" of Article 69 UPCA cannot be applied as an absolute cap, but only as a guideline. Under Article 20 UPCA the provision of Article 14 Enforcement Directive, as interpreted by the Court of Justice, clearly takes priority over Article 69 UPCA. As the Court has said, reasonable costs based on the work to be carried out need to be reimbursed, but not excessive costs due to unusually high fee rates. Thus, a ceiling may be indicative, but the amount should be realistic. In my experience, any ceiling for an international patent case that is under EUR 100.000 is not realistic."