UPC_CoA_49/2026 – Guardant v Sophia

Expert Commentary

Leave for appeal (costs) Facts 1. The LD Paris rejected the application for a preliminary injunction (“PI”) and ordered Guardant to pay an interim award of € 400.000. 2. Guardant appealed with respect to one of the five patents originally invoked. 3. Within a month after the PI proceedings, Sophia started cost proceedings and also requested a confidentiality order regarding its costs. 4. Guardant stated that the cost application was inadmissible or, alternatively, unfounded. 5. The JR: a. granted the confidentiality request; b. ordered costs to be paid at the amount of € 600.000, noting that € 400.000 had already been ordered. 6. Guardant asked for leave for appeal of the cost decision. 7. Guardant argues that: a. the JR issued the cost decision before it could see the unredacted application and before it had the opportunity to comment; b. an appeal was already pending at the time of the cost decision, and an interim award of damages had already been granted. For efficiency reasons, parties often agree to stay cost proceedings until the appeal has been decided. 8. Sophia did not oppose the request. The Standing Judge of the Court of Appeal 1. The Standing Judge grants the request, noting that the cost decision should have been taken after Guardant had access to the unredacted version and could comment on it. 2. There is no reference to the pending appeal against the PI. Cost proceedings are specific and separate. If leave for appeal is granted, the appeal will be decided by the standing judge (R. 221.5 RoP). 3. Guardant is ordered to lodge a written submission no later than 4 May 2026, and Sophia to respond not later than 18 May 2026. Comment 1. The LD Paris was a bit too efficient, but this is all due to the complex and time-consuming nature of costs determination. First of all, lawyers do not want their invoices to become public and therefore request confidentiality, which courts typically grant. As a result, until a decision is made on confidentiality and access is given to the unredacted version, the other party only sees the redacted version. The Court then has to allow time for submissions and responses before reaching a decision. 2. We have to realize that, prior to all this, the Court had already had to decide on the interim award of costs. 3. There are ongoing appeal proceedings with respect to the PI. The Court of Appeal will ultimately decide who must bear the costs, which leads to new costs proceedings before the LD Paris. 4. If Guardant is successful, then the whole prior determination of interim costs and Sophia’s first-instance costs has been unnecessary. In that case, Guardant’s costs would need to be established both at first instance and on appeal. 5. Sophia must timely initiate proceedings on the merits. What happens with costs if it loses those proceedings, or if it fails to file them timely? Then, as far as I understand, Guardant would be entitled to claim costs incurred at first instance and on appeal, and to claim back everything already paid to Sophia. 6. As I said before: agree on costs and change the Rules. No more cost proceedings, instead, establish a table of costs based on the value of the litigation, which costs are then simply awarded without the need for cost proceedings. The amount in the table can be around 70% of the current ceilings for recoverable costs, and as a final rule: winner takes all. 7. It is totally inefficient and unsatisfactory if judges and parties spend so much time on cost proceedings.

Full Decision Text

1 PROCEDURAL ORDER of the Court of Appeal of the Unified Patent Court issued on 17 April 2026 concerning an application for leave to appeal against a decision on costs (R. 221.3 RoP) APPLICANT (RESPONDENT IN COST APPLICATION AND APPLICANT IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) Guardant Health, Inc., Palo Alto, California, United States of America (hereinafter referred to as : “Guardant”) represented by Ms. Agathe Michel-De Cazotte, attorney at law, Carpmaels & Ransford LLP, London, United Kingdom RESPONDENTS (APPLICANTS IN COST APPLICATION AND DEFENDANTS IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) 1. Sophia Genetics SA, Rolle, Switzerland 2. Sophia Genetics SAS, Bidart, France 3. Sophia Genetics SRL, Milan, Italy 4. Sophia Genetics GmbH, Freiburg, Germany (hereinafter referred to as: “Sophia”) represented by Ms. Liz Cohen and other representatives, attorneys at law, Bristows (Ireland) LLP, Dublin, Ireland PATENTS AT ISSUE EP 3 470 533 EP 3 591 073 EP 3 443 066 EP 3 766 986 STANDING JUDGE This order has been adopted by Nathalie Sabotier, standing judge IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE Paris Local Division, 16 March 2026, issued in UPC-CFI 0000591/2026, (linked to the main provisional measures proceedings UPC CFI 808/2025) UPC Court of Appeal UPC CoA 49/2026 2 LANGUAGE OF THE PROCEEDINGS English SUMMARY OF FACTS AND PARTIES’ REQUESTS: 1. On 29 August 2025, Guardant lodged an application for provisional measures before the Local Division Paris against Sophia for infringement of four of its European patents (EP’533, EP’073, EP’066 and EP’986). At the stage of the reply to the objection, Guardant withdrew its request regarding EP’533. 2. By order dated 23 January 2026, the Local Division Paris rejected the application for provisional measures under EP’073, EP’066 and EP’986 and ordered Guardant to pay an interim award of costs of the proceedings amounting to EUR 400,000. 3. On 9 February 2026, Guardant appealed the order only with regard to EP’066 and costs. 4. On 12 February 2026, Sophia lodged an application for a cost decision, in accordance with R. 150 RoP. On the same date, Sophia filed a confidentiality application concerning information in the cost application itself and the supporting exhibits SG106 (invoices of costs incurred by Sophia). 5. In its written comments dated 2 March 2026, Guardant raised the inadmissibility of the cost application and, in the alternative, requested its dismissal as not well-founded. Concerning the confidentiality application, Guardant did not dispute the classification of the concerned information as confidential but requested a wider confidentiality circle than the one sought by Sophia. 6. By “procedural order” dated 16 March 2026 (the impugned order), the judge-rapporteur ordered: “On confidentiality: -The following documents are classified as confidential: the invoice values and total costs incurred by Sophia, outlined in the Cost Application and Exhibit SG106, containing the invoices relating to the above information. -The access to these documents is limited to the following persons: Guardant’s UPC representatives and their legal team in the case CFI 808/2025, and two natural persons/employees of Guardant (…) On costs: -Sets the costs to be paid by Guardant to Sophia within one month of the date of the present order, as follows: representation costs (including travel expenses): 600.000 euros, noting that the interim award of costs has already been ordered at the amount of 400.00 euros in the final order of 23 January 2026 to be paid on 10 March 2026.” 7. On 31 March 2026, Guardant lodged an application for leave to appeal against the impugned order, in accordance with R. 157 and R. 221 RoP. Guardant requests that (application, p. 5): 1. Leave to appeal shall be granted on the cost order (not on confidentiality). 2. If such leave to appeal is granted, to join the future appeal proceedings on costs with the PI appeal proceedings already pending before the second panel of the Court of Appeal under no. UPC CoA 19/2026. 3 8. By procedural order dated 3 April 2026, Sophia was given the opportunity to comment on this application, in accordance with R.220.3 RoP analogously applicable to applications for leave to appeal of cost decisions. 9. On 10 April 2026, Sophia responded that they had no comments on the application on leave to appeal or joinder, and requested a timetable for submissions on the substance of the appeal. INDICATION OF PARTIES’ SUBMISSIONS: 10. Guardant argues that the cost order was prematurely granted, as, in the impugned order, the judge- rapporteur ruled at the same time on confidentiality and on costs. As a result, the decision on costs was made before Guardant had access to the unredacted version of the application and Exhibit SG106 and before he could comment on them, in violation of Art 76(2) UPCA. 11. Guardant further argues that the haste with which the Local Division Paris issued the cost order in the present case is all the more incomprehensible that an appeal against the order on provisional measures had been lodged before the application for a cost decision and given the sizeable interim awards of costs already granted. Guardant adds that the order dated 23 January 2026 could be overturned and for that reason parties often agree to stay costs proceedings pending appeal for efficiency reasons. 12. Sophia did not oppose the requests. REASONS FOR THE ORDER Leave to appeal 13. Leave to appeal is granted. The standing judge agrees with Guardant, and Sophia did not contest this, that the cost decision should have been issued after Guardant had access to the unredacted version of the application and exhibit SG106, and had the opportunity to comment on them. Request to join these proceedings to appeal UPC CoA 19/2026 14. The assessment of costs is the subject of a specific and separate procedure (R.150 et seq. RoP), which also includes a specific appeal procedure in accordance with R.157 and R. 221 RoP. (UPC CoA 1/2024, Order of 29 July 2024, Hanshow v. VusionGroup, para 9; UPC CoA 302/2025, Order of 30 March 2026, Rematec v. Europe Forestry, para 9). According to R.221.5 RoP., if leave to appeal a cost decision is granted, the standing judge shall decide the appeal. 15. It follows from the above that request no.2 must be rejected. 16. The standing judge orders the parties to take the following steps on the substance of the appeal of the cost decision: Guardant shall lodge its written submission no later than 4 May and Sophia shall lodge its response no later than 18 May 2026. PROCEDURAL ORDER I. Leave to appeal the impugned order is granted. II. The request to join these appeal proceedings of cost decision with the pending appeal no. UPC CoA 19/2026 is rejected. 4 III. The standing judge orders the following steps: Guardant shall lodge its written submission on the substance of its appeal no later than 4 May 2026 and Sophia shall lodge its response no later than 18 May 2026. Issued on 17 April 2026. Nathalie Sabotier, standing judge

Key Holdings

• Leave to appeal a cost decision may be granted if a party was denied due process, such as access to unredacted cost applications or the opportunity to comment.
• Cost proceedings are distinct and separate from the main infringement or preliminary injunction proceedings, even if an appeal on the merits is pending.
• The current system for determining recoverable costs is complex and time-consuming, often leading to further procedural disputes.
• A simplified, table-based approach for cost awards, linked to the value of litigation, could significantly improve efficiency and reduce judicial burden.

Tags

• Costs
• Appeal
• Preliminary Injunction
• Confidentiality
• Procedural Efficiency

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