Article 74

Effects of an appeal

1.   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.

2.   Notwithstanding paragraph 1, an appeal against a decision on actions or counterclaims for revocation and on actions based on Article 32(1)(i) shall always have suspensive effect.

3.   An appeal against an order referred to in Articles 49(5), 59 to 62 and 67 shall not prevent the continuation of the main proceedings. However, 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.

Case Law:

Court of Appeal

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.

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.

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. 

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

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) 

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.

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. 

IPPT20250417, UPC CoA, Kodak v Fujifilm
Suspensive effect appeal rejected (Article 74 UPCA). Kodak has failed to demonstrate that the Court of First Instance’s findings and considerations constitute manifest errors, i.e. factual findings or legal considerations which prove to be untenable already on the basis of a summary assessment.

IPPT20250417, UPC CoA, Barco v Yealink
Application to grant suspensive effect for appeal of cost order up to the applicable ceiling of € 112.000 in order dismissing provisional measures rejected (Article 74 UPCA). The risks of problems of enforcement put forward by Barco are not such as to make the appeal devoid of purpose absent suspensive effect (ICPillar vs. ARM,).

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. 
 

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

IPPT20260210, UPC CFI, LD Milan, AWM v Progress Maschinen
Appeal against a CFI upholding a counterclaim for revocation has automatic suspensive effect. Stay of proceedings ordered. (Article 74(2) UPCA, Rule. 150 RoP, Rule 295 RoP). The automatic suspensive effect applies to the decision in its entirety, including the parts relating to legal costs. (Article 69 UPCA) Interpretation that “the automatic suspensive effect provided by law would be limited solely to the provisions of the decision relating strictly to the validity of the patent” introduces an arbitrary limitation that would exclude any suspensive effect relating to other points of the decision, including those relating to legal costs not contemplated by the provision’s wording. The court deviates from the decision in  CD Paris, dated 29.4.2025 (Roche Diabetes v Tandem Diabetes), the aforementioned decision did not consider the applicability of Article 74(2) UPCA at all. And refers to order of LD Brussels dated 2.5.2025 ( OrthoApnea ) where the Court determined that it was permissible to stay the proceedings for cost determination, even in cases where the automatic and mandatory suspensive effect stipulated in Article 74(2) UPCA does not apply.
  

IPPT20250502, UPC CFI, LD Brussels, OrthoApnea

Costs proceedings suspended until the UPC Court of Appeal has issued a judgment on the merits or the dispute is otherwise terminated (Article 69 UPCA, Article 74 UPCA, R. 150 RoP, R. 295(c) RoP). The Judge-Rapporteur infers that, as an exception to the general rule (starting position), the stay of cost proceedings is possible in the following cases (whether individually or cumulatively): If an appeal has been lodged against the decision on the merits by the first judge (R.295(c) RoP), the Judge-Rapporteur may suspend the proceedings ex officio; If in the light of the "proper administration of justice", it is appropriate for the judge-rapporteur to stay the costs proceedings (in application of R. 295(m) RoP); If the specific circumstances of the case indicate that the application of Article 69(1) would lead to "unfair" consequences for the "unsuccessful party" (in this case, the Respondent), it is the Respondent’s responsibility to convince the Judge-Rapporteur of these “unfair” consequences arising from an enforceable costs decision.

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.

IPPT20241010, UPC CFI, LD Düsseldorf, Sodastream v Aarke
Request for adjournment of oral hearing because of outstanding order of the Court of Appeal concerning request for security for costs dismissed (Article 74(3) UPCA, R. 334 RoP). No indication that it may not be efficient and cost effective to hold the oral hearing at this stage. Contrary to the opinion of Defendant the Court must not await a final order of the Court of Appeal on the security of costs before making its own decision on the merits in this case.

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.