Short Summary
This appeal concerned EP 3 536 712, where Sanofi and Regeneron appealed a decision of the Düsseldorf Local Division dated 13 May 2025 that dismissed their infringement action and ordered them to bear the costs. After the written procedure was closed, the appellants applied to withdraw the appeal pursuant to R. 265 RoP, indicating the parties had reached an agreement, and sought reimbursement of 50% of court fees. The Court of Appeal permitted the withdrawal, declared no cost decision necessary, but dismissed the request for reimbursement of court fees because the withdrawal occurred after the closure of the written procedure.
Detailed Summary
This case arose from infringement proceedings filed by Sanofi Biotechnology SAS and Regeneron Pharmaceuticals Inc. against multiple Amgen entities before the Düsseldorf Local Division of the Unified Patent Court. On 13 May 2025, the Court of First Instance dismissed the infringement action concerning EP 3 536 712 and ordered Regeneron and Sanofi to bear the costs of the infringement action. On 11 July 2025, Sanofi and Regeneron lodged an appeal (UPC_CoA_641/2025).
Parallel opposition proceedings concerning the same patent were pending before the Technical Boards of Appeal of the European Patent Office, with an oral hearing scheduled for 25 March 2026. On 10 September 2025, the judge-rapporteur, after consulting the parties, decided there was no need to stay the appeal proceedings under R. 295(a) RoP. Sanofi and Regeneron filed their Statement of grounds of appeal on 16 September 2025, and Amgen filed its Statement of response on 15 December 2025. By order of 30 January 2026, the judge-rapporteur declared the written procedure closed. On 10 March 2026, the parties were summoned to an oral hearing scheduled for 5 and 6 October 2026, with the case remaining in the interim phase.
On 11 March 2026, Sanofi and Regeneron filed an application for withdrawal of the appeal proceedings pursuant to R. 265 RoP, along with an application for reimbursement of court fees pursuant to R. 370.11 RoP. They indicated that the parties had reached an agreement, that no decision on the appeal (including on costs) was needed, and that the proceedings could be closed. On 12 March 2026, Amgen submitted its consent to the withdrawal, confirming that no application for a cost decision would be filed and that each party would bear its own costs.
On the merits of the withdrawal request, the Court of Appeal noted that under R. 265.1 RoP, a claimant may apply to withdraw an action as long as there is no final decision, and withdrawal shall not be permitted if the other party has a legitimate interest in the action being decided. R. 265.1 RoP applies mutatis mutandis to withdrawal of an appeal. Given Amgen's consent, the Court found that Amgen had no legitimate interest in the appeal being decided, and therefore permitted the withdrawal.
Regarding costs, the Court noted that no cost decision was required since both parties declared that a cost decision was not requested.
On the request for reimbursement of court fees, the Court examined R. 370.9 and R. 370.10 RoP, noting that reimbursement is only available in the situations expressly listed therein. The Court observed that amendments to R. 370.9 RoP entered into force on 1 January 2026 and applied to actions and applications filed after 31 December 2025. Since the withdrawal application was filed after this date, the new rule applied. Under R. 370.9(b) RoP, a party liable for court fees is reimbursed by 50% if the action is withdrawn before the closure of the written procedure. The Court held that, just as R. 265 RoP applies by analogy to withdrawal of an appeal, R. 370.9(b)(i) RoP likewise applies correspondingly. However, in this case, the withdrawal was requested during the interim phase, after the closure of the written procedure. The Rules of Procedure did not provide for any further reimbursement in the event of withdrawal of an appeal after closure of the written procedure, and the Court had no discretion to grant reimbursement beyond the situations expressly provided for in R. 370.9 and R. 370.10 RoP. Accordingly, the request for reimbursement of court fees was dismissed.
The Court of Appeal ultimately: (1) permitted the withdrawal of the appeal and declared the proceedings closed; (2) declared that there was no need for a cost decision; (3) dismissed the request for reimbursement of court fees; and (4) ordered that the decision be entered on the Register.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Sanofi Biotechnology SAS, Regeneron Pharmaceuticals Inc. vs Amgen N.V., Amgen S.R.L, Amgen GmbH, Amgen B.V., Amgen S.A.S., Amgen Inc., Amgen Europe B.V. is valuable context for structuring arguments or assessing risk in similar proceedings.
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