Context: In September 2023, the Helsinki Local Division of the Unified Patent Court (UPC) denied a preliminary injunction (PI) request by Switzerland’s AIM Sport Development AG against Finland’s Supponor Oy (and various Supponor subsidiaries) over a patent allegedly infringed by stadium perimeter advertising technology used at European soccer competitions. The patent had been opted out in May 2023, and the opt-out was withdrawn in July 2023, which was not deemed to restore the UPC’s jurisdiction over the patent. There were other defenses that might have succeeded in the alternative. The Helsinki LD entered a written decision that also disposed of the main proceedings (short shrift) on October 20, 2023.
What’s new: Today the UPC’s Court of Appeal has clarified (PDF) the period that losing parties have to lodge an appeal of a PI denial: 15 days. In the case at hand, the appeal was lodged after two months, which is the applicable period for final judgments in main proceedings. Given the special circumstances that gave rise to confusion on AIM’s part, the Court of Appeal exceptionally allowed the appeal out of time, but the order by a three-judge panel serves as a warning to other litigants: the next victim of the same type of misunderstanding may see its appeal thrown out now that judicial clarification has been provided.
Direct impact: AIM still appears unlikely to prevail on the merits.
Wider ramifications: This is now one of the most important decisions made by the UPC Court of Appeal to date that practitioners must be aware of.
The appellate order was issued by the UPC Court of Appeal’s Second Panel, whose Presiding Judge Rian Kalden also acted as judge-rapporteur on this matter (which may be another indication of the importance of the legal question decided). The other two members of the panel were Judges Ingeborg Simonsson and Patricia Rombach.
This is the relevant statute:
Rule 224 – Time periods for lodging the Statement of appeal […]
1. A Statement of appeal shall be lodged by the appellant:
(a) within two months of service of a decision referred to in Rule 220.1(a) and (b); or
(b) within 15 days of service of an order referred to in Rule 220.1(c) or a decision referred to in Rule 220.2 or 221.3.
So the two-month period applies to “final decisions of the Court of First Instance (Rule 200.1(a) RoP) and “decisions terminating proceedings as regards one of the parties” (dismissals), while the 15-day period applies to, inter alia, decisions on PIs.
But in this case, where the Helsinki LD disposed of the PI request and the main proceeding on the same day (the oral denial of the PI request came in September, but the written decision took until October 20), there was just one reminder by the court of the appellate deadline. And that one said two months.
The admissibility of the appeal could have been decided by a single judge, but given the importance of the question, Judge Kalden opted to refer it to a panel.
The appellate decision explains that it would not make sense to treat only a grant of a PI as an order subject to the 15-day deadline, but PI denials as a final decision that could still be appealed two months later. It’s 15 days whether the PI was granted or denied.
But given the special circumstances here, and that this question had not been previously addressed by the Court of Appeal, AIM’s PI appeal can go forward. It’s an exception, and the next litigant should not count on being treated as mercifully as AIM:
“The Court of Appeal notes that in another case in which the Court of First Instance incorrectly suggests that the time limit for lodging an appeal against a rejection of a preliminary measure is two months, the outcome may be different, as the Court of Appeal now has clarified the wording used in R. 220.1(c) RoP in this order.”
It was only in AIM’s case that the UPC Court of Appeal identified an “excusable error” following from the EU law principle of the protection of legitimate expectations, citing to three decisions by the Court of Justice of the European Union (in non-patent cases).