CoA, September 6, 2024, procedural order, UPC_CoA_457/2024 and UPC_CoA_458/2024

The two Defendants in the infringement proceedings pending before the Munich Local Division filed counterclaims for revocation of the patent at issue. In addition, a subsidiary of the Defendants filed a revocation action before the Central Division. The Munich Local Division referred the counterclaims for revocation to the Central Division. The Central Division maintained the patent at issue by auxiliary request II and rejected the counterclaims for revocation and the revocation action accordingly. This decision was appealed.

Appellants requested expedition of the appeal proceedings in view of the threat of the injunction which would cause severe and irreparable harm. However, the Court of Appeal held that the possibility that a Local Division might grant an injunction on the basis of a patent upheld by the Court of First Instance that may be revoked in appeal proceedings is not sufficient to justify the expedition of the appeal proceedings. Rather, the Local Division has various means to mitigate the risk of granting an injunction or the harm caused by such an injunction where the validity of the patent at issue is subject to an appeal, e.g. a stay of the infringement proceedings or rendering the decision under the condition subsequent that the patent is not held invalid by a final decision in the revocation proceedings.