Case Law
Rule 360: No need to adjudicate

Court of First Instance - Paris (FR) Central Division - Seat, Order dated 16/05/2024, STAÛBLI TEC-SYSTEMS GMBH / Ralf Konrad, Hellmuth Konrad (Case/ Registry number: UPC_CFI_372/2023, ORD_29883/2023)
Example of decision on the determination of the pary which has to bear costs of the proceedings: "6.4. By comprehensively renouncing the patent, the defendants have placed themselves in the role of the losing party and would therefore in principle have to bear the costs of the proceedings. However, pursuant to Art. 69 (2) and (3) UPCA, it must be examined whether equity requires a different allocation of costs. Of particular importance in this context is whether the defendants’ behaviour gave rise to the action for annulment.
In contrast, document A13 was cited for the first time in the nullity action, which can be reliably dated as printed prior art, whose relevance as prior art does not depend on the validity of the priority of the patent and which was alleged in the nullity action to be prejudicial to novelty. Therefore, very substantial prior art was obviously submitted for the first time in the nullity action.
Against this background, the defendants can plausibly argue that they would have declared the waiver before filing the action if they had already been informed of the new prior art cited in the statement of claim in pre-litigation correspondence. The reference in the letter dated 15 February 2023 (Annex A6) that the patent must be respected until its unpatentability is proven can be interpreted in this sense, since the defendants had previously stated that they would seek an out-of-court settlement. On the other hand, contrary to the plaintiffs’ argumentation, it cannot be concluded from the reference that a prior request for surrender, in particular with reference to further relevant prior art, would not have been fruitful anyway and would therefore have been futile from the outset.
Recognise the nullity action immediately or waive the patent. 6.12. In any case, in this constellation it seems unfair to impose the costs of the proceedings on the patent proprietors who immediately surrendered the patent in response to and with reference to the relevant prior art submitted for the first time in the nullity action. It therefore remains to be seen whether the plaintiff would have required a prior ultimate waiver request in order to exclude an obligation to bear costs even in the event of an immediate acknowledgement by the patent proprietor."

Court of First Instance - Munich (DE) Local Division, Order dated 19/12/2023, Meril GmbH v. Edwards Lifesciences Corporation (Case number UPC_CFI_249/2023 ORD_577734/2023)
Example of decision on the application by analogy of rules 360 RoP (no need to adjudicate) and 118.5 RoP (obligation to adjudicate on the merits of costs) to the application for provisional measures: “When the court finds that an action has become devoid of purpose and that there is no longer any need to adjudicate, it may, under rule 360 of the Rules of Procedure, "dismiss" the action at any time by means of an order, at the request of a party or of its own motion, after the parties have been heard”
“This provision must be applied by analogy to applications for provisional measures”.
“In the rules of procedure, the obligation to rule on the merits of costs is set out in rule 118.5 of the rules of procedure for proceedings on the merits. There is no such provision for summary proceedings. Rule 118.5 of the Rules of Procedure therefore applies by analogy. A decision on the amount of costs may be followed by a procedure for fixing costs in accordance with rule 151 of the Rules of Procedure.”