Short Summary
This case concerns an appeal before the Court of Appeal of the Unified Patent Court regarding the reimbursement of court fees following the withdrawal of an action. NanoString had brought a revocation action against Harvard's European Patent, which was revoked by the Court of First Instance. After Harvard appealed and NanoString subsequently withdrew the action, Harvard sought reimbursement of 60% of the appeal court fees. The Court of Appeal held that the action was withdrawn before the closure of the interim procedure rather than the written procedure, entitling Harvard to only 40% reimbursement.
Detailed Summary
On 27 July 2023, NanoString Technologies Europe Limited brought an action for revocation of European Patent 2 794 928 against the President and Fellows of Harvard College before the Munich Section of the Central Division of the Court of First Instance. By decision of 17 October 2024, the Central Division revoked the patent at issue entirely and ordered Harvard to bear the legal costs incurred by NanoString. Harvard lodged an appeal against this decision, and NanoString responded to the appeal.
On 14 May 2025, NanoString filed an application to withdraw the action, which the Court of Appeal permitted by order. On 23 May 2025, Harvard lodged an application for reimbursement of 60% of the court fees it paid for the appeal, relying on Rule 370.9(b)(i) of the Rules of Procedure, which provides for a 60% refund if the action is withdrawn before the closure of the written procedure.
The Court of Appeal examined the procedural timeline and determined that the written procedure before the Court of Appeal is limited to the submission of a statement of appeal, a statement of grounds of appeal, and a statement of response (unless a cross-appeal is lodged). Upon expiry of the period for lodging these statements, the interim procedure begins under Rule 239.1 RoP. The Court found that the written procedure in this case was closed when NanoString lodged its Statement of response on 16 April 2025 and the time limit of Rule 235 RoP expired. The judge-rapporteur's preliminary order of 5 May 2025, which gave Harvard the opportunity to reply to certain requests and both parties the opportunity to submit reasoned requests to file further written submissions, was issued as part of the interim procedure under the judge-rapporteur's case management powers (Rules 101, 331 et seq., and 239.1 RoP), and did not constitute an extension of the written procedure.
Accordingly, the Court of Appeal concluded that the action was withdrawn before the closure of the interim procedure, not before the closure of the written procedure. Under Rule 370.9(b)(ii) RoP, this entitled Harvard to a reimbursement of 40% of the court fees paid for the appeal, rather than the 60% requested. The Court ordered that 40% of the appeal court fees be reimbursed to Harvard.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in President and Fellows of Harvard College vs Respondent is valuable context for structuring arguments or assessing risk in similar proceedings.
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