1 Key takeaways
Under Art. 74(2) UPCA, appeals against revocation decisions have automatic suspensive effect, preserving patent status erga omnes, unlike the general rule in Art. 74(1) UPCA
– This automatic effect reflects the specific nature of validity decisions, which apply erga omnes. Unlike Art. 74(1) UPCA, where suspensive effect requires a motivated request showing exceptional circumstances, Art. 74(2) UPCA operates by law to maintain the patent’s legal status during the appeal.
– As an exception to the general rule of immediate enforceability, Art. 74(2) UPCA must be interpreted restrictively in accordance with its purpose and cannot extend beyond the decision on validity and revocation.
Cost decisions under Art. 69 UPCA and R. 150 ff. RoP do not benefit from automatic suspensive effect under Art. 74(2) UPCA
– Although cost liability is decided in principle in the decision on the merits under Art. 69 UPCA and R. 118.5 RoP, cost determination proceedings are legally separate and autonomous under R. 150 ff. RoP.
– Even if formally embodied in the same document as a revocation decision, the cost order remains distinct. Thus, an appeal by the defendant against revocation does not automatically stay cost enforcement.
When exercising its discretionary power to stay proceedings under R. 295 RoP, the court must balance the parties’ interests and the specific circumstances, and may take into account the suspensive effect operating in related revocation proceedings
– Appellate review of such discretionary decisions is limited to assessing whether the Court of First Instance exceeded the boundaries of its discretion.
– The Court of First Instance did not exceed its discretion in refusing a stay where the cost quantum was undisputed.
Refusal of payment by instalments under R. 156.3 RoP falls within the judge-rapporteur’s discretion taking into account Art. 69(1)–(3) UPCA
– The court acted within its discretion by ordering lump-sum payment within four weeks. The question whether instalments can ever be imposed without party agreement was left open, as the unsuccessful party failed to substantiate why internal approval cycles precluded timely compliance with the ordered schedule.
– Alleged internal difficulties cannot prevent the successful party from seeking an enforceable cost decision under R. 151 RoP based on an agreed cost ceiling.
2 Division
Court of Appeal
3 UPC number
UPC_CoA_121/2026
4 Type of proceedings
Appeal proceedings
5 Parties
Applicant / Appellant (Defendant in revocation action, Respondent in cost proceedings): Academy of Military Medical Sciences
Respondent (Claimant in revocation action, Applicant in cost proceedings): Gilead Sciences, Inc.
6 Patent(s)
EP 3 854 403
7 Jurisdictions
UPC
8 Body of legislation / Rules
Art. 69, 74 UPCA, Rules 118.5, 150 ff., 221, 295 RoP
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
