Juul Labs International, Inc. v. NJOY Netherlands B.V.

NJOY Netherlands B.V. brought a revocation action against Juul Labs International, Inc. before the Central Division Paris regarding European Patent EP 3 498 115. The Central Division revoked the patent with effect for the territories of Austria, Belgium, Denmark, Finland, France, Germany, Italy, Latvia, Luxembourg, Netherlands, Portugal and Sweden, and ordered Juul Labs to bear the costs of the proceedings. Juul Labs appealed the decision (UPC_CoA_5/2025).

During the appeal, the Court of Appeal ordered a stay of the revocation proceedings pending the outcome of parallel EPO opposition proceedings. The Opposition Division of the EPO had revoked the patent on 4 March 2024, a decision Juul Labs had appealed. On 17 October 2025, the Boards of Appeal of the EPO dismissed Juul Labs' appeal, confirming the revocation of the patent.

Following this development, NJOY lodged an application under R. 360 RoP requesting that the appeal be dismissed or, alternatively, that the revocation action be disposed of by way of order, and that Juul Labs bear the costs. Juul Labs then applied under R. 265 RoP to withdraw its appeal, requesting in the alternative disposal by way of order under R. 360 RoP, a partial refund of the appeal fee, and an order that NJOY bear the costs. Juul Labs argued that NJOY initiated the revocation action without provocation or legitimate cause, well aware of the pending EPO opposition proceedings, and that the EPO Opposition Division had already issued a preliminary opinion six months before NJOY filed its revocation action on 11 September 2023. NJOY consented to the withdrawal but requested that Juul Labs bear the costs of the appeal proceedings. The parties informed the Court that they had concluded a settlement regarding the recovery of costs from the first-instance proceedings.

The Court of Appeal held that the application to withdraw the appeal was admissible, as there was no final decision in the action and the Court of Appeal was responsible for deciding on the permissibility of the withdrawal. Given NJOY's consent, NJOY could not be considered to have a legitimate interest in the action being decided by the Court, and the withdrawal was permitted.

Regarding reimbursement of court fees, the Court applied R. 370.9(b)(i) RoP, which provided for a 60% refund where an action is withdrawn before the written proceedings have been concluded. Although R. 370.9(b) RoP was amended from 1 January 2026 to provide for a 50% reimbursement, the amendments applied only to actions and applications filed after 31 December 2025. Since the application in this case was filed before that date, the previous 60% rule applied.

On costs, the Court rejected Juul Labs' argument that NJOY should bear the costs of the appeal. The Court applied the general rule that, in case of withdrawal of an appeal, the appellant is considered the unsuccessful party and must bear the costs of the appeal proceedings. The Court considered whether an exception applied—where a claimant files a revocation action without the patent holder having given rise to the action and the patent holder surrenders the patent immediately at the beginning of the proceedings (requiring surrender and filing of a request for revocation under Art. 105a EPC within the time limit for filing a defence to revocation). The Court held this exception did not apply because Juul Labs had defended its patent in the first-instance proceedings, and there was no reason to extend this case-law to the present situation.

The Court therefore: (I) permitted the withdrawal of the appeal and declared the proceedings closed; (II) ordered Juul Labs to bear the reasonable and proportionate legal costs and other expenses incurred by NJOY for the appeal proceedings; and (III) ordered that 60% of the appeal court fees be refunded to Juul Labs.