Short Summary
The Court of Appeal of the Unified Patent Court rejected an application for suspensive effect filed by the Applicant (defendant in the underlying infringement action) against a decision by default of The Hague Local Division finding it liable for infringement of EP 1 993 350. The Applicant sought to suspend enforcement of parts of the default decision requiring it to send registered letters to customers, publish a notice on its website, and pay EUR 50,000 in interim damages. The Court held that the Applicant failed to establish exceptional circumstances justifying suspensive effect, as it did not demonstrate that the decision was manifestly erroneous or that its interest in maintaining the status quo outweighed Amycel's interest in enforcement.
Detailed Summary
This order concerns an application for suspensive effect under Rule 223 of the Rules of Procedure of the Unified Patent Court, filed by the Applicant (the defendant in the underlying infringement proceedings) against a decision by default issued by the Court of First Instance, The Hague Local Division, on 21 October 2025.
Background: Amycel, LLC had filed an application for provisional measures against the Applicant before The Hague Local Division for infringement of EP 1 993 350. Following inter-partes proceedings, the CFI ordered provisional measures, including a preliminary injunction (order no. 44133/2024 of 31 July 2024). Amycel subsequently brought a main infringement action on 30 August 2024. The CFI considered the steps taken to bring the Statement of Claim to the Applicant's attention as an alternative method of service and, pursuant to R. 275.3(b) RoP, set the deemed service date. By order of 1 April 2025, The Hague LD found that the Applicant's representative had not taken all due care to avoid late filing of the Statement of Defence and ordered a decision by default under R. 355 RoP.
In the impugned decision by default of 21 October 2025, The Hague LD held the Applicant liable for infringement of the patent at issue (concerning the mushroom strain Cayene) and ordered: (III) the Applicant to send registered letters to parties to whom it offered for sale, sold, delivered, or otherwise traded the infringing product, informing them of the decision and requesting return of current stock; (IV) the Applicant to publish a message on its website about the decision; and (VIII) the Applicant to pay Amycel EUR 50,000 as an interim award of damages.
The Applicant filed an appeal and, insofar as parts III, IV, and VIII were concerned, an application for suspensive effect. The Applicant argued that parts III and IV would be impossible to revert if the decision were set aside, emphasizing that information published on the internet remains permanently and that there was no urgency in the publication requests. Regarding part VIII, the Applicant argued it was unclear whether funds would be returned if the decision were set aside and that payment would have serious consequences on its business.
The Court of Appeal's reasoning: Under Article 74.1 UPCA, an appeal does not have suspensive effect unless the Court of Appeal decides otherwise at the motivated request of a party. Under R. 223.2 RoP, the application must set out reasons and supporting facts, evidence, and arguments. The Court of Appeal grants such applications only if exceptional circumstances justify an exception to the principle that appeals have no suspensive effect. Such exceptions may apply where the appealed decision is manifestly erroneous or where the appeal becomes devoid of purpose without suspensive effect (citing CoA 24 November 2025, UPC_CoA_000911/2025, Suinno v Microsoft; and CoA 20 May 2025, UPC_CoA_430/2025, Chint v. Jingao).
The Court found that the Applicant had not evidenced exceptional circumstances. The Applicant merely claimed that sending registered letters and publishing a website message would have irreversible consequences, without establishing that the impugned decision was manifestly erroneous. Even accepting that the consequences were not fully reversible, the Court held this did not mean the appeal would be devoid of purpose or that the Applicant's interest in maintaining the status quo outweighed Amycel's legitimate interest in informing the Applicant's customers of the decision. Regarding the interim damages, the Court found that the mere assertion of 'serious consequences' on the Applicant's business, without further substantiation, was insufficient to outweigh Amycel's interest in enforcement.
The Court decided without hearing Amycel, as R. 223.3 RoP requires decisions on suspensive effect applications to be made without delay, and the outcome was in Amycel's favour.
Order: The application for suspensive effect was rejected. The order was issued on 16 January 2026 by the panel of Klaus Grabinski (presiding judge), Emmanuel Gougé (judge-rapporteur), and Peter Blok.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Applicant *** vs Amycel, LLC is valuable context for structuring arguments or assessing risk in similar proceedings.
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