UPC_CoA_67/2026 – Advance Standard Communication (ASC) v Xiaomi
- Court
- Court of Appeal
- Date
- Outcome
- Denied
- Sector
- Electronics/SEP
- Decision Type
- PROCEDURAL
Expert Commentary
Security for costs / application for review Facts 1. ASC, a US-based company, started an infringement action against Xiaomi. 2. Upon a request by Xiaomi, ASC was ordered to provide security for costs within 8 weeks of the decision (order of the JR of 27 March 2026). 3. An application for review was rejected by the full panel by order of 23 April 2026 without leave for appeal. 4. On 8 May 2026, ASC filed a request for discretionary review and for suspensive effect with the Court of appeal, and corrected deficiencies in its statement of appeal on 15 May 2026. 5. Xiaomi got until 20 May 2026 to react. Instead, it asked for an extension of time. The JR 1. Xiaomi did not react before 20 May 2026. Since a decision for suspensive effect would only make sense if issued before 22 May 2026 (because by that time ASC has to provide security to comply with the JR’s order), Xiaomi’s request for an extension of time has to be rejected. 2. For deciding on the application for a discretionary review, the Court of Appeal must determine if there was a manifest error or if the order raises a fundamental question of law. 3. As ASC failed to argue that the decision was manifestly wrong, the application is rejected. 4. Whether or not to grant suspensive effect is normally decided by the Court of Appeal. However, pending a request for discretionary review, the standing judge is competent to take that decision. Moreover, the case is very urgent, which also calls for the decision to be made by the standing judge. 5. Since the application for discretionary review by the court of appeal is rejected (and the impugned order is therefore final), the application for suspensive effect has become devoid of purpose in the absence of appeal. Comment 1. Excellent service by the standing judge! It took ASC three weeks to file a (correct) request for discretionary review, leaving the JR with 6 days to reach a decision. 2. The representatives for Xiaomi were unable to react in 5 days. I find that quite incredible as they had already twice argued against ASC’s arguments (during the request in the Local Division and the revision procedure in the Local Division). Or they thought that an answer was not necessary, but then they should have told so to the Court and not asked for an extension. 3. The standing judge was able to decide in 4 days. He did not simply state that ASC had not argued that the Court had made a manifest error, but he even dealt with all of ASC’s arguments as to why the JR’s decision was supposedly wrong. 4. In short: a fast-working Court of Appeal, with representatives who were not too helpful.
Full Decision Text
1 Reference no.: UPC-CoA-67/2026 Order of the Court of Appeal of the Unified Patent Court concerning a request for a discretionary review (R. 220.3 RoP) and an application for suspensive effect (R. 223 RoP) issued on 19 May 2026 HEADNOTE An application for suspensive effect shall be decided by the Court of Appeal (R. 223 RoP). Under this rule, pending a request for discretionary review, the standing judge may decide an application for suspensive effect, since, at that stage of the appeal proceedings, the case is assigned to the standing judge (R. 220.4 RoP). KEYWORDS Discretionary review; suspensive effect APPLICANT (CLAIMANT IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) Advanced Standard Communication LLC, Garland, TX, USA (hereinafter "ASC") represented by Dr. Michael Schneider, attorney-at-law, and other representatives of the firm Eisenführ Speiser RESPONDENTS (DEFENDANTS IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) 1. XIAOMI Inc., Beijing, China 2. XIAOMI Communications Co., Ltd., Bejing, China 3. XIAOMI Technology Netherlands B.V., The Hague, Netherlands 4. XIAOMI Technology Germany GmbH, Düsseldorf, Germany (hereinafter, collectively, "Xiaomi"), represented by Oliver Bäcker, attorney-at-law, and other representatives of the firm Hogan Lovells PATENT AT ISSUE EP 3 016 464 DECIDING JUDGE Peter Blok, Standing judge 2 LANGUAGE OF THE PROCEEDINGS English IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE □ Order of the Court of First Instance of the Unified Patent Court, Munich Local Division, dated 23 April 2026 □ Reference number: UPC CFI 617/2024 FACTS AND REQUESTS OF THE PARTIES 1. ASC filed an infringement action with the Munich Local Division, alleging that the patent at issue is infringed by Xiaomi. 2. Xiaomi filed a Statement of defence, in which they argue, inter alia, that ASC is required under antitrust law to grant Xiaomi a licence on Fair Reasonable and Non-Discriminatory (FRAND) terms. Xiaomi also filed a counterclaim for revocation of the patent at issue. 3. In addition, Xiaomi filed a request for security for costs. 4. By order of the judge-rapporteur dated 24 March 2026 and served on the parties on 27 March 2026 (the Judge-rapporteur Order), the Munich Local Division – in summary – ordered ASC to provide security for costs within eight weeks of the date of service of the order. 5. On 13 April 2026, ASC filed an application for review of the Judge-rapporteur Order by the panel. The panel of the Munich Local Division rejected the application, without granting leave to appeal, by order of 23 April 2026 (the Impugned Order). 6. On 8 May 2026, ASC filed a request for a discretionary review under R. 220.3 RoP, requesting that the Court of Appeal set aside the Impugned Order and dismiss Xiaomi’s request for security for costs, or, in the alternative, order security for costs unless ASC provides proof of having secured litigation insurance. In the same statement, ASC filed an application for suspensive effect under R. 223 RoP. ASC corrected deficiencies in the statement on 15 May 2026. Subsequently, it was served on Xiaomi. 7. Xiaomi was given the opportunity to respond to the request for discretionary review and the application for suspensive effect by 20 May 2026. Xiaomi filed a request for extension of the time limit until 25 May 2026, or 22 May 2026. GROUNDS FOR THE ORDER No further comments by Xiaomi 8. The Court of Appeal will decide upon the request for discretionary review and the application for suspensive effect without waiting for further comments from Xiaomi. As the time limit for compliance with the Judge- rapporteur Order expires on 22 May 2026, the application for suspensive effect must be decided upon before that date. Therefore, Xiaomi’s request to extend the time limit to 25 May 2026 or 22 May 2026 must be dismissed. Xiaomi will not be disadvantaged by not being heard, since the request for discretionary review and the application for suspensive effect will be rejected. 3 Discretionary review 9. The request for discretionary review is admissible but must be rejected. 10. When deciding whether to allow a discretionary review, the Court of Appeal must consider whether the impugned order of the Court of First Instance is manifestly erroneous and whether the impugned order raises a fundamental question of law and its review is necessary to ensure a consistent application and interpretation of the Rules of Procedure or any other objective of the discretionary review (CoA, UPC CoA 489/2024, order of 6 September 2024, Motorola v. Ericsson, para. 4; UPC CoA 805/2025, order of 1 September 2025, Centripetal v. Keysight, paras. 8 and 11). 11. ASC merely presented a number of reasons why, in its view, the impugned order is incorrect. However, ASC failed to argue, let alone demonstrate that the alleged errors are manifest. The impugned order is not manifestly erroneous for the following reasons. 12. Firstly, ASC failed to demonstrate that the Munich Local Division erred in finding that Xiaomi had met the burden of presenting facts and evidence to support their assertion of a risk of cost recovery. ASC has not indicated any information that Xiaomi could reasonably have obtained and submitted to further support the risk of cost recovery. 13. Secondly, the fact that Xiaomi has submitted a licence offer to ASC and has provided a bank guarantee for payments under the offered licence does not imply that the Munich Local Division’s findings on the risk of cost recovery are manifestly erroneous. As the Munich Local Division noted, ASC did not accept the licence offer and the conditions under which the bank would render payment were not met. In these circumstances, which ASC has not challenged in its request, the conclusion that there is a risk of cost recovery cannot be considered manifestly erroneous. 14. Thirdly, the Munich Local Division did not err in rejecting ASC’s alternative request for security to be ordered unless ASC provides proof that it has secured litigation insurance. The Local Division observed, without any manifest error, that, if ASC had wanted to address Xiaomi’s concerns about cost recovery by purchasing such insurance, it could and should have done so prior to the impugned order. The opportunity for ASC to do so did not arise as a result of the Court of Appeal’s order of 18 February 2026 (UPC CoA 890/2025, Syntorr v Arthrex). Suspensive effect 15. An application for suspensive effect shall be decided by the Court of Appeal (R. 223 RoP). Under this rule, pending a request for discretionary review, the standing judge may decide an application for suspensive effect, since, at that stage of the appeal proceedings, the case is assigned to the standing judge (R. 220.4 RoP). In addition, ASC’s reference to the expiry of the time limit for providing security expiring on 22 May 2026 should be interpreted as an application to the standing judge under R. 223.4 RoP. ASC’s application for suspensive effect will therefore be decided by the standing judge. 16. The application for suspensive effect must be rejected as it has become devoid of purpose. Since the request for discretionary review will be rejected, there will be no appeal that could suspend the impugned order. ORDER The request for discretionary review and the application for suspensive effect are rejected. 4 This order was issued on 19 May 2026. Peter Blok Standing judge
Key Holdings
- An application for discretionary review requires the applicant to demonstrate a manifest error or a fundamental question of law.
- Failure to adequately argue a manifest error will lead to the rejection of a discretionary review application.
- The standing judge can be competent to decide on suspensive effect applications, especially in urgent cases or pending a discretionary review request.
- Rejection of a discretionary review application renders any associated application for suspensive effect devoid of purpose.
- Timeliness is critical in procedural matters; requests for extensions may be denied if they impede urgent decision-making.
Tags
- Security for costs
- Application for review
- Suspensive effect
- Procedural
- Court of Appeal
- Timeliness