Key takeaways
It is not a requirement that a request for suspensive effect is lodged in a separate workflow in the
Court’s case management system
This may be done separately, and is advisable if an order is required urgently. It cannot however be inferred from R.223 RoP that the lodging in a separate workflow is a requirement in order for such a request to be admissible. A request can indeed be included in the Statement of appeal and Grounds of appeal. In such a case, however, unless explicitly requested otherwise, such request shall follow the regular procedural regime of such Statement, and the Court of Appeal shall consider the request after it has received the respondent’s comments as shall be included in its Statement of response. R.223.3 RoP, which stipulates that the Court of Appeal shall decide the Application without delay, does not lead to another conclusion. Since the applicant has the option of either submitting an application to the Standing Judge in case of extreme urgency, or lodging a separate application if the decision is not to be delayed until after the Statement of response is lodged, the interests of the applicant are sufficiently taken into account.
Suspensive effect of an appeal (Article 74(1) UPCA)
According to Article 74(1) of the Agreement on a Unified Patent Court (UPCA), 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.
Division
Court of Appeal Luxemburg
UPC number
UPC_CoA_388/2024
Type of proceedings
Preliminary Injunction
Parties
Apellants / Defendants in the main proceedings before the CFI
Sibio Technology Limited
Umedwings Netherlands B.V.
Respondent / Claimant in the main proceedings before the CFI
Abbott Diabetes Care Inc.
Patent(s)
EP 2 713 879
Body of legislation / Rules
Rule 223 RoP; Article 74(1) UPCA
