2025-01-16 - LD Hamburg - Avago Technologies v. Tesla

1. The court of first instance has jurisdiction to withdraw an application for the determination of costs to be reimbursed that is still pending at first instance, even if the main proceedings (infringment action and counterclaim) are already at the appeal stage. 2. Since this is not a measure of the management of proceedings pursuant to Rules 331 et seq. of the Rules of Procedure, but a decision on the merits within the original competence of the Judge-Rapporteur pursuant to Rule 156.2 of the Rules of Procedure, the Judge-Rapporteur also has original and sole competence to authorise the withdrawal.

Following the Hamburg LD's decision of 26 August 2024 dismissing Avago's infringement action and partially revoking the patent (with costs allocated 85/15 to Avago/Tesla), the Tesla defendants had lodged a cost-determination application. After Avago appealed the merits decision, the judge-rapporteur asked whether the cost-determination proceeding should be stayed pending appeal under R. 295 RoP. Before that question was decided, the parties settled the appeal and moved to withdraw all actions and counterclaims. Tesla also applied to withdraw the cost-determination application; Avago consented. The judge-rapporteur held that (i) even though the main case is on appeal, the first-instance court retains jurisdiction over a still-pending cost-determination application filed at first instance; (ii) authorising withdrawal of a cost-determination application is a decision on the merits within the judge-rapporteur's original competence under R. 156.2 RoP, not a case-management measure under R. 331 et seq. RoP, and therefore falls within the judge-rapporteur's sole original competence. The withdrawal was admitted and the cost-determination proceedings declared closed.