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Rule 223: Application for suspensive effect

Court of Appeal - Luxembourg (LU), Order dated 26/07/2024, OrthoApnea S.L., Vivisol B BV v. *** (Case/ Registry number: App_42818/2024, ORD_43804/2024)
Example of decision on application for suspensive effect: "6. Defendants’ request for suspensive effect sub I is admissible.
7. Art 74(1) UPCA and Rule 223 RoP give the Court of Appeal, and in extremely urgent cases, the Standing Judge in exceptional circumstances the power to allow suspensive effect to an appealed decision or order. Such exceptional circumstances could be, for example, where the appeal is devoid of purpose or would render the appeal largely effective if the impugned order where not given suspensive effect, because the consequences of enforcement of the impugned order cannot be effectively reversed if the order is later set aside (see UPC_CoA_301/2024, order of 19 June 2024, para 6 f.).
8. In the case-at-hand, Defendants request suspensive effect regarding the decision of the Court of First Instance not to extend the time period for the statement of rejoinder until a final decision has been given on Defendants’ request to deny Claimant to claim infringement by equivalent means.
9. This request for suspensive effect is admissible as it would render the request sub II to extend the time for submitting the statement of rejoinder devoid of purpose.
10. It is also extremely urgent as the time period for Defendants’ statement of rejoinder will end in 5 calendar days.
11. Defendants’ request for suspensive effect sub I, however, is unfounded.
12. Defendants argue that it would be necessary to know whether the allegation of an infringement by equivalent means brought forward by Claimant only in his statement of reply is permitted or not under Rule 263 RoP before expiration of the time period of their rejoinder because only in the second alternative they would be required to respond to that aspect in their rejoinder. If they would have to reply without knowledge of a respective finding of the Court of Appeal, the rejoinder would have to cover also this aspect. That would entail the risk that costs associated to such an extensive pleading were not necessary if it later turns out that the allegation were not permissible from the outset.
13. Considering Defendants’ arguments there is no necessity to allow suspensive effect as requested.
14. According to the UPC Rules of Procedure, parties submit their statements in the written procedure without knowing how their allegations will be assessed by the Court of First Instance or the Court of Appeal. That entails the risk that part of their allegations will not be relevant for the outcome of the case.
[...]
17. For these reasons, it is not decisive in the case-at-hand that request II (the appeal against the decision of the Court of First Instance not to extend the time period for the statement of rejoinder) may become devoid of purpose as a consequence of the decision not to grant suspensive effect as requested by Defendants."

Court of Appeal - Luxembourg (LU), Order dated 19/06/2024, ICPillars LLC (Case/ Registry number: App_35055/2024, ORD_26664/2024)
Example of decision regarding an application for suspensive effects: " Article 74 UPCA generally allows the Court of Appeal to decide, at a motivated request, that an order shall be given suspensive effect. Orders as meant in R.220.2 RoP are not excepted from this. In case of a conflict between the UPCA and the RoP, the provisions of the UPCA prevail (R.1.1 RoP). The Court of Appeal therefore considers that granting suspensive effect to an order pursuant to R.220.2 RoP is possible pursuant to Art. 74(1) UPCA, notwithstanding R.223.5 RoP. Given the clear principle underlying Art. 74(1) UPCA and R.223.5 RoP, that proceedings before the Court of First Instance must as much as possible continue unhindered by any (procedural) appeals, the Court of Appeal shall only give suspensive effect to appealed orders under exceptional circumstances, especially if such order concerns an order as meant in R.220.2 RoP."

Court of Appeal - Luxembourg (LU), Order dated 06/11/2023, Ocado Innovation Limited against Third Party (Case number App_584588/2023 UPC_CoA_407/2023->https://www.unified-patent-court.org/de/node/484])
Example of decision granting suspensive effect: “Art. 74 UPCA stipulates that an appeal shall not have suspensive effect unless the Court of Appeal decides otherwise at the motivated request of one of the parties. The Rules of Procedure shall guarantee that such a decision is taken without delay.
Rule 233 RoP provides the parties with a possibility to lodge an application for suspensive effect. The Court of Appeal shall decide the application without delay. In cases of extreme urgency the applicant may apply at any time without formality for an order for suspensive effect to the standing judge pursuant to R. 223.4 RoP. The standing judge shall have all the powers of the Court of Appeal and shall decide the procedure to be followed on the application.
In the present case, the appeal shall have suspensive effect, to ensure that there is time to adjudicate Ocado’s appeal on the merits. In the absence of suspensive effect, the order on access to the documents in question will be enforceable on 7 November 2023, which would make the appeal devoid of purpose.”