UPC roundup: CoA on suspensive effect of orders; The Hague LD on Ireland; Munich panel gets first new case; Lenovo countersues ASUSTeK

1. Court of Appeal on suspensive effect of orders and on how NOT to push for expedited appellate proceedings

LinkedIn post

The Court of Appeal of the Unified Patent Court has just provided some clarification on (a) its ability to enter orders with suspensive effect and (b) one way in which an appellant seeking expedited appellate proceedings can undermine its position.

ip fray discussed the first-instance decision on May 21 (article). The Paris Local Division order a non-practicing entity named ICPillar suing Arm to provide security.

Today’s decision by the 2nd panel of the CoA (Presiding Judge Rian Kalden (here, as often, also judge-rapporteur), Judge Ingeborg Simonsson, Judge Patricia Rombach) does not yet resolve ICPillar’s appeal as it relates only to a request to suspend the obligation to provide security (due by July 2) or, in the alternative, expedite the appellate proceedings.

The CoA’s second panel denied either part of that motion:

1. No suspensive effect because a reasoned request would have had to show that the effects of the appealed order remaining in force would be irreversible even if that order was overturned or, alternatively, that the decision below was manifestly wrong. Security can be released, so there’s nothing irreversible, and ICPillar didn’t argue that it couldn’t afford making the initial security payment of €400K. And the CoA does not see that the Paris LD’s decision is manifestly wrong.
   The most important part is that the CoA does say it can suspend an order, including one to give security, on a reasoned request. To the extent that Rule 223(5) of the UPC’s Rules of Procedure (RoP) appears to limit the CoA’s powers in this regard, the UPC Agreement is higher authority (in this case, Art. 74 UPCA).
   
2. An expedited appeal (ICPillar’s fallback request) was denied because it looks like ICPillar wanted to have the full 15 days to write its opening brief an appeal, but wanted to shorten the time that the defendants (multiple Arm entities) would get. The CoA considered this unfair (“equality of arms” being an important policy objective). Now, technically ICPillar used only about half of the 15 days if one counts from the moment that leave to bring an appeal was granted, but had previously waited a week after the May 21 order to request leave. The CoA pragmatically looked at the net effect, which is that they had the full 15 days, which Arm should also get.

Counsel for ICPillar: SCP August Debouzy’s Lionel Martin. Counsel for Arm: Mayer Brown’s Christoph Cruetzen (“Crützen” in German).

2. UPC injunction’s effect on Ireland: The Hague LD

LinkedIn post

From newly published Unified Patent Court order (PI for Abbott against Sibio; The Hague LD):

Competence for Ireland

Abbott’s application in section 7.2 sets out the following: “The Patent is valid and in force in the Contracting Member States of Germany, France, The Netherlands and also Ireland. It is also in force in the UK.”. Read together with the order sought, this entails that Abbott apparently wishes the order to also cover Ireland, which is a signatory state to the UPCA, and therefore a Contracting Member State, even though Ireland has not yet ratified the Agreement. In this case (unlike the parallel case 14945/2024), Sibio c.s. did not challenge the competence of this court with respect to Ireland. According to Art. 31 UPCA (which provides that the international competence of the court is established in accordance with Brussels Regulation 1215/2012 as amended by EU Regulation 542/2014, “BR”), and Art. 26, 35 and 71, 71a and 71b BR, this court therefore is competent to hear the case. Incidentally, Art. 24 BR does not apply as no invalidity defence has been raised. Since the UK is no longer a Contracting Member State, the court does not understand the application to also involve the UK. This local division is undisputedly competent to hear the case as the alleged (threatened) infringement occurred (inter alia) in the Netherlands (Art. 33 UPCA).

Panel: Presiding Judge and judge-rapporteur Edger Brinkman, Judge Petri Rinkinen, Judge Margot Kokke.

In that parallel case mentioned above, the court didn’t have to reach the Ireland question because the patent was deemed likely invalid.

3. First new case for Munich LD’s new second panel

LinkedIn post

First new case assigned to Judges Daniel and Ulrike Voss (“Voß” in German), the new judges of the Unified Patent Court’s Munich Local Division (newly formed second panel (May 28, 2024 ip fray article)): Brita SE v. AquaShield, Inc., case no. ACT_29522/2024, EP2387547 (“valve actuating device of a valve, liquid tank of a liquid treatment apparatus, and a liquid treatment apparatus”).

The two judges who are originally from Dusseldorf are joined by Judge Mojca Mlakar of the Ljubljana (Slovenia) LD. This means there’s another first: the first-ever Munich LD case with two female judges (it could even be the first one with any female judge on the panel).

Counsel for plaintiff: Meissner Bolte’s Niels Schuh.

4. Lenovo countersues ASUSTeK

LinkedIn post

Lenovo is countersuing ASUSTeK in the Unified Patent Court’s Munich Local Division:

Case no. ACT_33753/2024, EP3682587 (“reference signals for radio link monitoring”).

Unlike the valve patent case discussed in the previous post (first new case to be assigned to the two new Munich LD judges, and first Munich LD case with two female judges on the panel), this one has been assigned to the first panel (Presiding Judge Dr. Matthias Zigann, Judge Tobias Pichlmaier, and they are joined by Judge Peter Agergaard of the Copenhagen LD).

The dispute started with ASUSTeK suing Lenovo in the Munich I Regional Court last August. Lenovo countersued, initially in the USITC.

Lenovo is represented by Freshfields Bruckhaus Deringer’s Eva Acker.