Re-establishment of rights following failure to apply for a cost decision in time

Heraeus v. Vibrantz

UPC_CFI_1510/2025 (Munich LD), 13 January 2026 ⁽¹⁾

The dispute arises out of earlier proceedings between Heraeus Electronics GmbH & Co. KG (claimant) and Vibrantz GmbH (defendant), relating to European Patent No. 3215288. The Munich Local Division issued a substantive decision on 10 October 2025 addressing infringement and a counterclaim for revocation. Among other findings, the court partially revoked the patent in three Contracting Member States and dismissed the infringement action. In its cost decision, the court apportioned 40% of the costs to the defendant and 60% to the claimant.

This apportionment triggered the time period for instituting the cost decision procedure under Rule 151 RoP, which requires an application from any party wishing to obtain reimbursement. The defendant filed its application on 10 November 2025, within the one month limit. The claimant, however, responded only on 19 November 2025 and did not file its own cost decision application within the deadline. Only when confronted on 1 December 2025 with the defendant’s procedural objection that the claimant’s own position was time barred. did the claimant, on 4 December 2025, file both (1) a late application for a cost decision and (2) an application for reestablishment of rights under Rule 320 RoP, arguing that the deadline had been missed due to an erroneous legal assessment by their representative.

Relevant Facts for the Re-establishment Question

The claimant argued that its representative had not recorded the cost decision deadline because they believed—incorrectly—that in a “mixed cost ratio” situation the net paying party did not need to submit an application under Rule 151 RoP. The representative realised the issue only upon receiving the defendant’s 1 December submission. The claimant emphasised that an otherwise robust internal deadline monitoring system existed, applying a four-eyes principle and random checks. They submitted that the erroneous legal assumption was genuinely held, not a product of negligence.

The defendant countered that the claimant’s application was both inadmissible and unfounded, insisting that misunderstanding the law cannot meet the “due care” standard.

The Court’s Reasoning

The Munich Local Division held the application to be admissible and, in an exceptional case, well-founded.

On admissibility, the court confirmed compliance with the one month period of Rule 320.1 RoP and accepted that the omitted act—filing the cost decision application—had been carried out concurrently with the re-establishment request.

On substance, the court emphasised the general rule:

• Misunderstanding the law does not normally constitute grounds for re-establishment, and a party is responsible for its representative’s errors.
• However, it found this case exceptional. The Rules of Procedure do not expressly state that, where a cost ratio has been determined, both parties must file cost-decision applications. Prior case law was unsettled, and leading commentary cited by the defendant stated only that both parties can, not must, apply.

Thus, the claimant’s legal misinterpretation was considered excusable. The court noted further that the claimant had established a credible and robust internal system for deadline monitoring (including the four-eyes principle), meaning that the missed deadline did not result from a failure of diligence. Given the absence of clear precedent and the structural ambiguity in the Rules, the court deemed the claimant’s error reasonable.

The court therefore granted re-establishment of rights, enabling the claimant’s late cost decision application to proceed.

Dissenting Opinion

Judge Brinkman issued a detailed dissent. Contrary to the majority, he considered the claimant’s application inadmissible for lack of legal interest. According to the dissent, the claimant was not seeking a cost award in its favour, but only wished to assert its 40% reclaimable share as a defence—a deduction from amounts claimed by the defendant. Rule 156.1 RoP, requiring the judge rapporteur to consider “any item of costs that should be apportioned or borne by each party,” should permit this defence without the claimant filing a separate application under Rule 151.

Further, the dissent warned that the majority’s interpretation would force parties to file cost applications in every split-cost case, increasing burdens on both litigants and the court, contrary to the UPCA’s efficiency objectives.

Conclusion and Key Lessons

The decision is an important early authority on re-establishment of rights in cost-decision proceedings. It confirms that:

• Both parties must file a cost-decision application when a cost ratio is determined, despite ambiguity in the Rules.
• Re-establishment of rights may exceptionally be granted when legal uncertainty exists, particularly where internal deadline systems are otherwise robust.

Overall, the order underscores the need for parties and representatives to systematise deadline control and to assume—until further clarification—that any party seeking cost recovery or offset must file its own timely application to preserve its rights.

1. https://www.unifiedpatentcourt.org/en/node/160259