2026-07-17 - CoA - Fujifilm v. Kodak - UPC_CoA_861/2025

The Court of Appeal reversed a Central Division Paris cost order and held that a revocation claimant, though nominally the successful party after the patentee surrenders the patent and the action is disposed of under R. 360 RoP, must bear the costs on equity grounds under Art. 69(2) UPCA where the patentee did not give rise to the action and surrendered immediately at the beginning of the proceedings. Applying Meril v Edwards (UPC_CoA_2/2024) and Stäubli v X (UPC_CoA_290/2024), the Court clarified that a pending EPO opposition filed by another group company — still within its response term — is not a warning or threat giving cause for a revocation action, and that the claimant should either await the opposition response deadline or send a separate request to surrender before suing. Fujifilm's surrender was 'immediate' because it filed the R. 360 disposal application and its Art. 105a EPC surrender request with the EPO within the time limit for the defence to revocation (R. 49 RoP). Because Kodak unnecessarily initiated the revocation action, it must bear the costs.