Rule 223 – Application for suspensive effect

1. A party may lodge an Application for suspensive effect, in accordance with Article 74 of the Agreement. 3. The applicant shall pay a fee for the application  in accordance with Part 6

2. The Application for suspensive effect shall set out:

(a) the reasons why the lodging of the appeal shall have suspensive effect;

(b) the facts, evidence and arguments relied on.

3. The Court of Appeal shall decide the Application without delay.

4. In cases of extreme urgency the applicant may apply at any time without formality for an order for suspensive effect to the standing judge [Rule 345.5 and .8]. The standing judge shall have all the powers of the Court of Appeal and shall decide the procedure to be followed on the application, which may include a subsequent written Application.

5. There shall be no suspensive effect for an appeal of an order pursuant to Rule 220.2, Rule 220.3 or 221.3.

Relation with Agreement: Article 74

Case Law

Court of Appeal

IPPT20260424, UPC CoA, Polytechnik v Dall Energy
Suspensive effect of appeal from order to produce evidence rejected (R. 223 RoP, R. 190 RoP, R. 262A RoP). The appeal is not devoid of purpose: a succesfull appeal  would result in the exclusion of the produced documents from the evidentiary record. The impugned Order must be clearly construed as meaning that only the Claimant’s representatives and their legal team are authorized to access the confidential information specified therein and that these representatives and their legal team are prohibited from sharing the confidential information with the Claimant. No breach of fundamental procedural rights. The system of procedural rules governing proceedings before the UPC follows the principle that all facts and evidence must be adduced to the proceedings as early as possible, ideally during the written procedure. This is also intended to ensure the fair conduct of the proceedings by enabling all parties to be fully informed of the facts and arguments forming the subject-matter of the dispute.

IPPT20260414, UPC CoA, La Siddhi v Athena Pharma

Request for suspensive effect of security of costs order rejected for lack of exceptional circumstances. (Article 74 UPCA, Article 69 (4) UPCA, Rule 223 RoP, Rule 158 RoP). The applicant did not demonstrate: Manifest error in the decision,Irreversible harm or Violation of fundamental procedural rights.

IPPT20260324, UPC CoA, Alpina Coffee v CUP&CINO

Request for suspensive effect rejected due to lack of exceptional circumstances (Article 74 UPCA, Rule 223.1 RoP). Appellant has not argued that the decision is manifestly flawed, or that the decision is based on a breach of a fundamental procedural right. In the application for suspensive effect, appellant does not address the contested decision and/or the proceedings before the Local Chamber at all. Possible future developments such as outcomes of parallel proceedings cannot justify suspensive effect. The possibility of additional infringements or parallel findings cannot justify delaying enforcement.

IPPT20260324, UPC CoA, Applicant v Amycel
Inadmissible second application for suspensive effect (R. 223 RoP). The principle that parties shall set out their full case as early as possible in the proceedings (RoP, Preamble, paragraph 7, last sentence) also applies to applications for suspensive effect. This means that an application for suspensive effect must set out all the reasons, facts, evidence and arguments on which the applicant wishes to rely. Any subsequent application for suspensive effect will be inadmissible, unless the applicant can demonstrate that the new application is based on submissions that could not reasonably have been made in the previous application. 

IPPT20260218, UPC CoA, Guardant Health v Sophia Genetics
Request for suspensive effect for interim cost award rejected: no infringement of fundamental procedural rights and manifest errors (R. 211.1(d) RoP, R. 223 RoP).

IPPT20260116, UPC CoA, Amycel
Suspensive effect appeal rejected (R. 223 RoP). The Applicant has merely claimed that the sending of registered letters (part III of the impugned decision) would be impossible to revert and that the publication of a message on the website of the Applicant (part IV of the impugned decision) would entail "irreversible consequences”, without establishing that the impugned decision is manifestly erroneous. Even if the Court were to accept that the consequences of these orders are not fully reversible, it does not follow that the appeal becomes devoid of purpose in the absence of suspensive effect and that the Applicant's interest in maintaining the status quo until the decision on appeal outweighs Amycel's legitimate interest informing the Applicant’s customers of the decision.
 

IPPT20251229, UPC COA, Amazon v InterDigital

Suspensive effect of appeal from anti-suit order dismissed. (Rule 223 RoP). Amazon has not established that irreversible harm is imminent and that not ordering suspensive effect would render the appeal-at-hand devoid of purpose. Enforcement (Rule. 354.4 RoP). The risk that the court may initiate penalty proceedings of its own motion under R. 354.4 RoP , at any time, does not justify an order of suspensive effect.  

IPPT20251217, UPC COA, Huawei v TP-Link
Application for suspensive effect successful. (Article 74 UPCA,  Rule 223 RoP). TP link denied access to written submissions. Order made without prior hearing of the applicant due to the limited time remaining before the expiry of the implementation period. Applicant given opportunity to comment on the application for suspensive effect within the time limit for responding to the appeal.

IPPT20251202, UPC COA, Windhager v Bellissa HAAS
Application for suspensive effect of appeal rejected. (Article 74 UPCA , Rule 223 RoP). No obvious inaccuracy in the contested decision, obvious errors of law not proven .Windhager's concern over reputational harm from the recall, removal from distribution channels, and  destruction of its goods does not outweigh Belissa's interest in enforcing its patent. 

IPPT20251124, UPC CoA, Suinno v Microsoft

Application for suspensive effect of appeal rejected (R.223 RoP, Article 74.1 UPCA). The requirement of exceptional circumstances has to be established by the applicant. Suinno has no evidence of exceptional circumstances which would justify why the lodging of the appeal shall have suspensive effect. Microsoft not heard as the decision on application for suspensive effect is to be made without delay (R. 223.3 RoP) . No demonstration that PCD’s findings and considerations constitute manifest errors. Suinno has merely claimed that it would be unreasonable for Microsoft to proceed with the enforcement of the costs decisions without establishing that the impugned decision is manifestly erroneous.

IPPT20251107, UPC CoA, Lepu v Occlutech
Application for suspensive effect appeal unfounded (R. 223 RoP, Article 74 UPCA). Lepu has failed to demonstrate that the Hamburg Local Division’s findings and considerations constitute manifest errors, i.e. factual findings or legal considerations that are clearly untenable even on the basis of a summary assessment. In addition, Lepu argues that enforcing the provisional injunction would cause damage to its reputation. However, it failed to demonstrate that its interests in preventing such damage outweigh Occlutech’s interests in preventing the imminent patent infringement, as established by the Hamburg Local Division.

IPPT20251106, UPC CoA, Black Sheep Retail v HL Display
Application for suspensive effect of order to communicate information unfounded (R. 223 RoP, Article 74 UPCA, Article 67 UPCA). Communication of information belongs to measures that, when so ordered, are necessary to ensure a high level of protection. It is thus only under exceptional circumstances that the enforcement of such measures may be suspended. If the defendant can reasonably foresee that the orders and evidence requested by the claimant may require it to disclose confidential information, this should be raised by the defendant during the proceedings on the merits.

IPPT20250825, UPC CoA, Sun Patent v Vivo
Application for suspensive effect appeal of confidentiality club regime rejected (R. 262A RoP, R. 223 RoP). The appeal will not become devoid of purpose as a result of not granting the application for suspensive effect. The information protected under R. 262A RoP will still be confidential as the employees from respondent will still be obliged to maintain confidentiality. In the event appellant succeeds in appeal, the access to the information will be removed.

IPPT20250815, UPC CoA, RiVOLUTION v Cilag
Application for suspensive effect unsuccessful because the reasons for the decision are not yet available (R. 223 RoP). If, as in this case, the grounds for the decision are not yet available, an obvious error in the contested decision can only be assumed if it is possible to identify an obvious error without knowledge of the grounds for the decision. This is the case, for example, if the operative part of the decision pronounces a legal consequence that does not result from either the Agreement on a Unified Patent Court or the Rules of Procedure. 15-days deadline for filing the grounds of an appeal only begins to run upon delivery of a reasoned decision (R. 224. 2(b) RoP),

IPPT20250815, UPC CoA, Sun Patent Trust v Vivo Mobile
Application for suspensive effect of appeal inadmissible  absent a pending appeal (R. 223.1 RoP, Art. 74 UPCA). 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. Nevertheless, for this provision to be applicable, the applicant must first have lodged a Statement of appeal (R. 224.1 RoP) and paid the appeal fee in accordance with R. 228 RoP. Lodging the Statement of grounds of appeal is not a prerequisite (R. 224.2 RoP).

IPPT20250710, UPC CoA, OTEC Präzisionsfinish v Steros
No suspensive effect for appeal against preliminary injunction (Article 74 UPCA, R. 223 RoP). It is not apparent from OTEC’s submissions that OTEC was prevented at the oral hearing from also making statements on infringement and validity and within the time frame granted (see R.113.1 RoP). Certain of OTEC’s statements at the oral hearing that have not been taken into account in the impugned order, may have been implicitly considered and found to be inadequate for challenging Steros' submissions. Nor does the impugned order manifestly lack reasoning which would justify the granting of suspensive effect. 

IPPT20250626, UPC CoA, Easee v Visibly
Suspensive effect granted for appeal from order to provide security by defendant in infringement action because of manifest error (R. 223 RoP, Article 69(4) UPCA). After the impugned order was issued, in other proceedings, the Court of Appeal has ruled that Art.69(4) UPCA does not provide a legal basis for an order to provide a security for costs at the request of a claimant in an infringement action and that a security for costs may also not be requested by such claimant in response to a counterclaim lodged by the defendant in the infringement action (UPC_CoA_393/2025, APL_20694/2025 AorticLab vs. Emboline). As it is clear from the reasons of the AorticLab vs. Emboline order, the principles apply regardless of the circumstances of the individual case. Outstanding issue regarding competence of law firm (Article 48 UPCA, R. 285 RoP) to file the appeal and the application for suspensive effect regarding the Easee companies in view of the insolvency of both entities having formally declared insolvent at the time when these motions were filed.

IPPT20250617, UPC CoA, Knaus Tabbert v Yellow Sphere

Inadmissible application (“Gegenvorstellung”) based on R. 9.1 RoP regarding the Court of Appeal’s order of 21 may 2025 in which the application for suspensive effect of the appeal against the impugned order was rejected (Article 74 UPCA, R. 223 RoP). This provision relates to the Court's authority to issue procedural orders during ongoing proceedings. However, it does not give the Court the power to amend or revoke orders that conclude proceedings. The right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union (CFREU) does not afford a right of access to a second level of adjudication but only to a court or tribunal.

IPPT20250606, UPC CoA, NUC v Hurom
Suspensive effect rejected (Article 74 UPCA, R. 223 RoP) of appeal against order to communicate information (Article 67 UPCA, Article 8 Enforcement Directive). The provisions of Art. 67 UPCA mirror those of Article 8 of the Enforcement Directive” which, is designed to ensure a high level of protection in all the Member States of the European Union, and allows precise information to be obtained on the origin of the infringing goods or services, the distribution channels and the identity of any third parties involved in the infringement (Enforcement Directive, Preamble para. 21). It is thus only under exceptional circumstances that the enforcement of such measures may be suspended under R. 223 RoP. Even if disclosure of the information pending the appeal would to some extent undermine the purpose of the appeal against this part of the impugned decision, it must be shown that the appeal becomes devoid of purpose without suspensive effect and that its interests in maintaining the confidentiality of the information pending the appeal outweigh the respondent’s interests in immediately obtaining the relevant information.

IPPT20250530, UPC CoA, Belkin v Philips

A party is adversely affected and allowed to appeal if a request is not fully granted (R. 220.1 RoP). Only the grant of suspensive effect by the Court of Appeal, rather than the mere filing of an application, suspends the enforceability of the decision (Article 74(1) UPCA, R. 223 RoP) 

IPPT20250526, UPC CoA, Strabag v Swarco

Application by intervener Chainzone for suspensive effect of appeal rejected (R. 223 RoP, R. 315 RoP). It can be left open whether the intervener is entitled to file an application for suspensive effect of the appeal and in particular whether Chainzone has a legal interest in having the enforcement suspended. It can also be left open whether the admissibility of the application is precluded by the fact that Strabag has already unsuccessfully applied for suspensive effect. Chainzone has failed to (sufficiently substantiated) demonstrate manifest errors in the impugned order or an infringement of fundamental procedural rights on which the decision is based.

IPPT20250521, UPC CoA, Knaus Tabbert v Yellow Sphere.

Unsuccessful application for suspensive effect of appeal (Article 74(1) UPCA, R. 223 RoP). The application for suspensive effect must on its own, enable the appeal court to decide on the application, if necessary without further information. References to passages in written pleadings and documents in the first-instance files are permissible, provided that they are specified in sufficient detail. Ordering security for enforcement is not necessary in every case but at the discretion of the Court (Article 82(1) UPCA). The Local Division correctly assumed that it is necessary to weigh the interest of the patent proprietor in the effective enforcement of his property right against the interest of the alleged patent infringer in the effective enforcement of possible claims for damages in the event of a subsequent annulment of the decision. No obvious error in weighing up the interests involved. Given that Knaus Tabbert was aware of the disputed patent and therefore took a calculated risk of patent infringement by marketing the contested embodiments, it is reasonable to refrain from ordering security for enforcement. No obvious error with regard to proportionality by orders for recall, removal from commerce and destruction of not only the contested frames, but the entire caravan. The patent does not protect individual components of minor importance, but rather the basic design of the caravan. Even if the disagreements between the parties, as argued by Knaus Tabbert, are only of a financial nature, the Order for destruction in particular may be justified. No risk of appeal becoming moot. It is true that, in the event of destruction of the contested embodiments, these cannot be reversed. However, Knaus Tabbert is entitled to damages in this case. It does not follow from Knaus Tabbert's submission that its interests are not sufficiently taken into account by the payment of damages. No reason to allow the argument that Yellow Sphere’s financial situation is insufficient to be raised for the first time in appeal. Proceedings for a stay of enforcement, in which the appeal court decides on the application without delay (R. 223.3 RoP) are not suitable for findings on the claimant’s financial circumstances, which – as a rule – can only be made after hearing the opposing party and findings of fact may also be necessary.

IPPT20250520, UPC CoA, Chint v JingAo
Rejected suspensive effect (R. 223 RoP) and expedition of appeal (R. 9.3(b) RoP) of order to provide security in the amount € 200,000 by 6 June 2025. Appeal not devoid of purpose without suspensive effect, no undue burden (R. 223 RoP) If Chint provides the security and the impugned order is subsequently revoked by the Court of Appeal, Chint may release the security. No undue burden: The mere fact that Chint will have to make arrangements with banks and its internal finance department is not sufficient, taking into account that a suspension of the impugned order may cause delays in the proceedings before the Munich Local Division. Decided without having heard JingAo, since the Court of Appeal must decide on an application for suspensive effect without delay (R. 223 RoP) and the outcome is in favour of JingAo. 

IPPT20250418, UPC CoA, Meril v Edwards
Suspensive effect appeal rejected. Suspensive effect pursuant to Art. 74 UPCA can only be granted if, on the basis of the circumstances, the appellant's interest in maintaining the status quo until the decision on its appeal exceptionally outweighs the respondent's interest (R. 223 RoP). The mere fact that an appeal is pending against a decision concerning an action and counterclaims for revocation is, however, not sufficient to order suspensive effect of the appeal against the decision in the related infringement action. The enforcer of the injunction contacting distributors of the infringer’s products, does not affect this balance of interests, since the impugned decision does not apply to these third parties. 

IPPT20250116, UPC CoA, Bhagat v Oerlikon
No suspensive effect of appeal justified (R. 223 RoP, R. 25 RoP) by (i) a judgement to be expected ‘very soon’ in parallel proceedings, to which Bhagat is not a (intervening) party, and (ii) an unsubstantiated statement that there are “considerable doubts” as to the validity of the patent while no counterclaim for revocation has been filed in the first instance 

IPPT20241217, UPC CoA, Curio v 10x
Application to the standing judge for suspensive effect of an appeal because of extreme urgency (R. 223.4 RoP) rejected regarding an order to the defendant to provide € 200.000 security for legal costs of the claimant (R. 158 RoP, Art. 69(4) UPCA). Within the discretion of the standing judge to dismiss the application without hearing the respondent. Extreme urgency under R 223.4 RoP is clearly distinct from, and does not require the impugned order to be “manifestly wrong”, but the Court is not convinced that the CFI was manifestly wrong and whether the CFI has given a correct interpretation of R 158 RoP regarding Art. 69(4) UPCA will have to be decided by the Court of Appeal at the end of the appeal proceedings.

IPPT20241211, UPC CoA, Magna v Valeo
Suspension of provisional injunction to cover PI carveout for BMW supplies. The effect of the impugned order suspended insofar as the injunction covers the BMW 2 Series Gran Coupé car model (Article 74 UPCA, R. 223 RoP). From the Statements lodged by Magna it was therefore already clear that there were six car models already on the market or soon to be introduced on the market that were fitted with the attacked embodiment. The Court at First Instance could and should have deducted from the above mentioned documents – and if uncertain in the alternative should have asked Magna at the hearing which models should be included if such a list with exempted car models was going to be drawn up, and would thus have learned – that also the 2-series Grand Coupé should be on that list. It was obviously wrong not to correct the impugned order by adding the 2-series Grand Coupé to the list of exempted cars.  

IPPT20241121, UPC CoA, Magna v Valeo
The effect of the impugned order is suspended (Article 74 UPCA, R. 223 RoP). On the basis of Magna’s submissions, the Standing Judge of the Court of Appeal considers that Magna’s interest in maintaining the status quo exceptionally outweighs Valeo’s interest in the immediate enforcement.

IPPT20241114, UPC CoA, Magna v Valeo
The effect of the impugned order is suspended (Article 74 UPCA, R. 223 RoP) until the Court of First instance has decided on the request for correction, insofar as the exception to the injunction issued therein does not include the “BMW 2 Series Gran Coupé” model.

IPPT20241029, UPC CoA, Belkin v Philips
Manifest error of law that managing directors of a company are intermediaries within the meaning of Art. 63(1) UPCA solely on the basis of their function as managing directors. A managing director of a patent infringing company represents that company. This company cannot therefore be a ‘third party’ within the meaning of Art. 63 UPCA and Art. 11 of the Directive 2004/48. Suspensive effect of the appeal regarding the enforcement against de defendant’s managing directors (Article 74 UPCA, R. 223.1 RoP). Suspensive effect may be considered in particular if the order against which the appeal is directed is manifestly erroneous or if the enforcement of the contested decision would render the appeal largely redundant. A manifest violation of law exists if the factual findings and legal considerations prove to be unsustainable in the summary examination to be carried out or in case of violation of fundamental procedural rights such as the right to a fair hearing.  A request for suspensive effect must by itself, enable the Court of Appeal to decide, if necessary without further information  (R. 223.1 RoP). References to written submissions and documents in the first-instance case file are admissible, provided that these are identified in a sufficiently specific manner. 

IPPT20240819, UPC CoA, Sibio v Abbott
Manifestly erroneous that Ireland is a Contracting Member State of the UPC (Article 84.2 UPCA) and  thus cannot be considered to be covered by Abbott’s request for a preliminary injunction. The Court of First Instance therefore awarded more than was requested for, which is contrary to Art. 76 UPCA. Suspensive effect granted insofar as the impugned order extends to the territory of Ireland. Application for suspensive effect admissible (Rule 223 RoP, Article 74 UPCA). Not a requirement that a request for suspensive effect is lodged in a separate workflow in the Court’s case management system

IPPT20240726, UPC CoA, OrthoApnea
Request for suspensive effect of appeal, regarding a decision not to extend a time period and to allow amendment of infringement claim with equivalency, admissible but unfounded (Art. 74(1) UPCA, Rule 223 RoP, Rule 263 RoP). 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.

IPPT20240621, UPC CoA, Mala v Nokia
As a general rule, the main proceedings are not stayed pending an appeal because of the principle that proceedings before the Court of First Instance must as far as possible continue unhindered by any (procedural) appeals (Rule 223 RoP, Article 74 UPCA). A stay may be granted under exceptional circumstances, having regard to the relevant circumstances of the case, such as the stage of the revocation proceedings before the Court of First Instance, the stage of the appeal proceedings and the interests of the parties or if the impugned order were manifestly erroneous.

IPPT20240619, UPC CoA, ICPillar v ARM
No suspensive effect given to appeal from order to provide security (Rule 220 and 223 RoP, Article 74 UPCA) and request to expedite appeal rejected (Rule 9(3) RoP). Granting suspensive effect to an order pursuant to R.220.2 RoP, is possible under Article 74 UPCA notwithstanding R.223.5 RoP. Suspensive effect only to be given under exceptional circumstances. An example of such exceptional circumstances would be where the appeal is devoid of purpose or would render the appeal largely ineffective if the impugned order were not given suspensive effect, because the consequences of enforcement of the impugned cannot be effectively reversed if the order is later set aside (see UPC_CoA_407/2023, order of 6 November 2023; UPC_CoA_177/2024, order of 2 May 2024). Other exceptional circumstances that could justify suspensive effect would be where the impugned order is manifestly wrong (See UPC_CoA_2/2024, order of 18 January 2024). No suspensive effect given to appeal from order to provide security for costs. ICPillar not unable to comply with the order, nor would it lead to extreme detriment if it complies. 

IPPT20240502, UPC CoA, PMA v AWM
Suspensive effect given to appeal of restitution order (that that shall take place from 5 June 2024) to ensure that there is time to decide on the appeal before the impugned order is enforced (Article 74 UPCA). No decision on the costs since this order is not a final order or decision concluding an action (Rule 242.1 RoP).

IPPT20240118, UPC CoA, Meril v Edwards Lifesciences
Application to order suspensive effect to appeal of order to bear the (to be assessed) costs of the proceedings up to a maximum of € 200.000 dismissed (article 74 UPCA, Rule 223 (1) RoP). Admissible application: A decision under Rule 360 RoP by which the court has dismissed an action because there is no need to adjudicate on the merits and includes the decision on the costs of the proceedings is to be be regarded as a final decision within the meaning of Rule 220.1(a) RoP and not as a decision within the meaning of Rule 223.5 RoP. Application unfounded: Interest of the plaintiff regarding further costs for cost assessment procedure does not generally outweigh the interest of the successful party within the meaning of Rule 151 RoP in a quick decision on the costs of the proceedings. Suspensive effect also not justified because if there are errors in the appealed order, they are in any case not errors that led to a manifestly erroneous order.

IPPT20231106, UPC CoA, Ocado
Appeal from the order to grant a third party access to documents (Rule 262 RoP) shall have suspensive effect, to ensure that there is time to adjudicate Ocado’s appeal on the merits from the Order to grant a third party access to documents, which will be enforceable on 7 November 2023 and would make the appeal devoid of purpose. (Article 74 UPCA, Rule 223 RoP, Rule 262 RoP) Application ex officio handled as having extreme urgency by the standing judge (Rule 223(4) RoP).

Court of First Instance

IPPT20241219, UPC CFI, LD Paris, HP v Lama
Only the Court of Appeal has the power to suspend the execution of a decision (Article 74 UPCA, R. 223 RdP) and to date no appeal has been lodged against the decision on the merits. 

IPPT20240729, UPC CFI, LD The Hague, Powell Gilbert v Abbott and Sibio
Public access to the register granted, applying criteria set forth in IPPT20240410, UPC CoA, Ocado v Autostore (Rule 262 RoP). Leave to appeal granted. From R. 220/224 RoP and 73 UPCA it might not be totally clear if and when an appeal of this order can be lodged, while it appears this should at any rate be made possible. To prevent an appeal to become meaningless, a term of 15 days before access is granted is to be observed (and unless no appeal is filed within that period).

IPPT20240408, UPC CFI, LD Milan, PMA v AWM
No access to written report and any other outcome of the measures to inspect premises and to preserve evidence and revocation of the measures to preserve evidence because applicant did not timely start proceedings on the merits (Article 60(9) UPCA, Rule 198 RoP, Rule 9(4) RoP). Restitution of all evidence gathered through the execution of the revoked measures is to take place from 05.06.2024 on, unless the Court of Appeal decides otherwise (Article 74 UPCA, Rule 223 RoP). It is quite clear that an appeal could not be effective if this Court’s order for the return of the evidence gathered were given immediate effect.