Case Law
Article 74: Effects of an appeal

Court of First Instance - Düsseldorf (DE) Local Division, Order dated 10/10/2024, SodaStream Industries Ltd. v. Aarke AB (Case/ Registry number: App_55249/2024, ORD_55600/2024)
Example of decision on an appel concerning the security of costs: "Art. 74 (3) UPCA rules that an appeal against an order referred to in Art. 49 (5), 59 to 62 and 67 UPCA shall not prevent the continuation of the main proceedings, but the Court of First Instance shall not give a decision in the main proceedings before the decision of the Court of Appeal concerning an appealed order has been given. As an order concerned the security of costs is not mentioned here, there is no indication that the Court must await a final order of the Court of Appeal before rendering its own decision on the merits. Therefore there is certainly no reason why it will be inefficient to hold the oral hearing as planned. Even if one would argue otherwise, the Court is not hindered to delay the announcement of its decision on the merits depending on the course of the oral hearing."

Court of Appeal - Luxembourg (LU), Order dated 2/05/2024, PROGRESS MASCHINEN & AUTOMATION AG/ AWM, Schnell (Case number: UPC_CoA_177/2024 ORD_24950/2024)
Example of decision where an exception to the principle that an appeal has no suspensive effect may apply, for instance, if the enforcement of the order pending the appeal would render the appeal largely ineffective: “10. According to Article 74(1) of the Agreement on a Unified Patent Court, the appeal has no suspensive effect unless the Court of Appeal decides otherwise at the motivated request of one of the parties. The Court of Appeal can therefore grant the application only if the circumstances of the case justify an exception to the principle that the appeal has no suspensive effect. It must be examined whether, on the basis of these circumstances, the Appellant’s interest in maintaining the status quo until the decision on its appeal exceptionally outweighs the Respondent’s interest (Court of Appeal 18 January 2024, App_100/2024, UPC_CoA_4/2024). An exception to the principle that an appeal has no suspensive effect may apply, for instance, if the enforcement of the appealed order or decision would make the appeal devoid of purpose (Court of Appeal 6 November 2023, App_584588/2023, UPC_CoA_407/2023).”

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.”