More certainty: as from 1 September, also indicative rates in patent cases

A little background information: the winning party in intellectual property proceedings can be reimbursed a large part of its litigation costs (lawyer's fees). However, these costs must be predictable in advance of proceedings. Reimbursement has therefore long been restricted in copyright, trademark, design and trade name cases. The judiciary has devised 'indicative rates: for each category of case ranging from very simple, normal to complex, the maximum legal costs that can be claimed have been indicated. When assessing the complexity of the case, the number of bases, claims (and counterclaims), the size of the defence, the number of legal actions, the financial importance of the case, etc. can play a role. The parties may argue that the case is simple or complex, but in the end it is up to the court to categorise it (and which indicative rates correspond with it).

This has not yet been the case for patent proceedings. Until recently, when it came to litigation costs “the winner takes it all”. This had the consequence that cost awards could be very high. From now on, therefore, we will also have to deal with indicative fees and thus more certainty in patent proceedings.

The costs of the lawyer and patent attorney fall under the indicative rate as 'legal costs'. This does not apply to the costs of experts and court registry fees and disbursements: these costs fall outside the indicative rates and can therefore be claimed separately. As in other IP cases, the judge in patent cases will assess which cost order is reasonable on the basis of the indicative fees.

In short, more clarity prior to proceedings, something that all parties to proceedings can welcome.

Moïra Truijens