UPC CoA 737/2025 App 34714/2025 – Rivolution GmbH v Cilag GmbH International

Expert Commentary

Full Decision Text

1 Order of the Court of Appeal of the Unified Patent Court issued on 15 August 2025 concerning an application for an order for suspensive effect HEADNOTE: Where the grounds for the decision are not yet available, the assumption of a manifest error in the contested decision may, as a rule, only be made if the existence of an obvious error can be established without knowledge of the grounds for the decision. This may, for example, be the case where the operative part pronounces a legal consequence that derives neither from the Agreement on a Unified Patent Court nor from the Rules of Procedure. KEYWORDS: - Application for suspensive effect in respect of an order for which the grounds have not yet been stated - Manifest error - Commencement of the time period for the Statement of grounds of appeal APPELLANT AND APPLICANT/DEFENDANT IN THE PROCEEDINGS FOR INTERIM MEASURES IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE RiVOLUTiON GmbH, Rosenheim, Germany, (hereinafter: Rivolution) represented by Attorney-at-law Dr Peter Koch, PENFORCE, Germany, and by Patent Attorney Meyer- Wildhagen together with other patent attorneys of MFG Patentanwälte RESPONDENT/DEFENDANT/APPLICANT 1) IN THE PROCEEDINGS FOR INTERIM MEASURES IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE Cilag GmbH International, Zug, Switzerland (hereinafter: Cilag) represented by Attorney-at-law Prof. Dr. Tilman Müller-Stoy, BARDEHLE PAGENBERG, Germany ADDITIONAL APPLICANT IN THE PROCEEDINGS FOR INTERIM MEASURES AT FIRST INSTANCE: Ethicon LLC, Guaynabo, United States of America, (hereinafter: Ethicon) represented by Attorney-at-law Prof. Dr. Tilman Müller-Stoy, BARDEHLE PAGENBERG, Germany LANGUAGE OF PROCEEDINGS Action no: UPC CoA 737/2025 App 34714/2025 2 German DECIDING JUDGE Patricia Rombach, legally qualified judge and judge-rapporteur IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE Munich Local Division, Order of 6 August 2025, ORD 34376/2025, ACT 20165/2025 UPC CFI 381/2025 PATENT AT ISSUE: EP 2 515 768 SUMMARY OF FACTS AND REQUESTS OF THE PARTIES 1. Cilag and Ethicon applied to the Munich Local Division for an order on provisional measures against Rivolution on the ground of infringement of claim 1 of the patent at issue. 2. By the order challenged in the appeal proceedings, the Munich Local Division ordered Rivolution, in relation to Cilag, in the Contracting Member State Federal Republic of Germany, to cease and desist from offering, placing on the market, or using, or importing or possessing for those purposes, surgical instruments with the features of claim 1 of the patent at issue, which are specified in the operative part of the order (A.). 3. It provided for a penalty payment in the event of non-compliance (B) and ordered that Rivolution reimburse Cilag on a provisional basis the sum of €64,000 within 20 days, and that Ethicon bear 20% and Rivolution 80% of the costs of the proceedings. For the rest, the Munich Local Division dismissed the application for an order on provisional measures. 4. Rivolution appealed the order, the grounds of which are not yet available. Requests of the parties 5. Rivolution requests, inter alia, that: I. The effect of the impugned decision be suspended until the Court of Appeal has issued its decision on the appeal. II. The Statement of grounds of appeal be reserved for a separate pleading. III. The period for submitting the Statement of grounds of appeal run from service of the written judgment and amount to four weeks in total. SUBMISSIONS OF THE PARTIES 6. Rivolution submits, in essence and in summary, that:  The time limit for lodging the appeal runs from service of the order, and not from service of the grounds for the decision. 3  The contested decision is manifestly erroneous and infringes Rivolution’s rights, in particular the right to be heard and the right to a fair trial.  The Local Division must have proceeded on the basis that urgency was present. Thus, the requirements of urgency were disregarded or were manifestly misassessed.  Cilag made no significant efforts over a longer period (approximately two years) to clarify the possible patent infringement, which must be regarded as detrimental to the requirement of urgency.  On the basis of the factual background, which Cilag disputed only to the extent that it had had no reason to examine or challenge the product in dispute prior to the letter of entitlement, there exists, in any event, grossly negligent ignorance tantamount to knowledge.  At the oral hearing, the Local Division indicated that an applicant for interim measures must weigh up whether to proceed cautiously or to invoke all patents.  Cilag did not submit any evidence in support of its assertion of a “sudden increase in sales activity” of Rivolution. There is no indication of an imminent price erosion in the market at issue. Furthermore, the fact that the Chinese manufacturer of the attacked embodiments is working on a circumvention solution does not alter the lack of urgency.  The balancing of interests is likewise flawed.  In view of the manifest error of law, Rivolution’s interest in maintaining the status quo until the decision in the appeal proceedings outweighs Cilag’s interest in enforcement. There was no submission as to why the potential damage could not be compensated by monetary relief. Since the market launch, Rivolution has achieved a turnover in the mid six-figure range. By contrast, the reputational damage, which already extends to other product groups not even covered by the patent at issue, is immense. Cilag informed customers about the pending proceedings and the decision, with the result that they refrained from placing orders.  Moreover, the decision is enforceable without security, even though Cilag is domiciled in Switzerland. It must therefore be considered that the damage suffered by Rivolution as a result of the order would not be compensated, given the difficulties of enforcement abroad, even if the Court of Appeal were to set aside the order.  The order also contains an obvious error with regard to the cost decision. According to it, Ethicon is required to bear only 20% of the procedural costs.  The parties had agreed on a maximum reimbursement of EUR 80,000 in respect of representatives’ fees. The order stipulates that Rivolution is to bear 80% of the provisional costs, while it makes no provision for any reimbursement of costs by Ethicon. GROUNDS FOR THE ORDER I. Application for an order for suspensive effect 1) Admissibility 4 7. The application for an order for suspensive effect is admissible, and in particular admissible under Art. 74 UPCA and R. 223.1 RoP. 2) Merits of the application 8. The application for suspensive effect is unfounded. a) Conditions for granting suspensive effect 9. According to Art. 74(1) UPCA, an appeal shall not have suspensive effect unless the Court of Appeal decides otherwise at the motivated request of one of the parties. The Court of Appeal can therefore grant the application only if the circumstances of the case justify an exception to the principle that an appeal has no suspensive effect. It must be examined whether, on the basis of these circum- stances, the appellant’s interest in maintaining the status quo until the decision on its appeal excep- tionally outweighs the respondent’s interest (UPC Court of Appeal, Order of 18 January 2024, UPC CoA 4/2024, App 100/2024, Meril/Edwards, p. 5; Order of 19 June 2024, UPC CoA 301/2024, App 35055/2024, ICPillar, para. 7; Order of 19 August 2024, UPC CoA 388/2024, APL 39884/2024, Sibio et al/Abbott, para. 6). 10. The granting of an order for suspensive effect may in particular be envisaged if the order against which the appeal is directed is manifestly erroneous (UPC Court of Appeal, Order of 18 January 2024, UPC CoA 4/2024, App 100/2024, Meril/Edwards, p. 5; Order of 19 August 2024, UPC CoA 388/2024, APL 39884/2024, Sibio et al/Abbott, para. 7), or if the enforcement of the con- tested decision would make the appeal largely devoid of purpose (UPC Court of Appeal, Order of 6 November 2023, UPC CoA 407/2023, App 584588/2023, Ocado/Third Party; Order of 2 May 2024, UPC CoA 177/2024, APL 20002/2024, Progress Maschinen & Automation, para. 10). 11. Furthermore, the violation of fundamental procedural rights, such as the principle of the right to be heard, may also justify the ordering of suspensive effect if it cannot be ruled out from the outset that the court would have come to a different conclusion without the violation (UPC Court of Appeal, Order of 29 October 2024, UPC CoA 549/2024, App 53031/2024, Belkin/Philips, para. 61). 12. An application for suspensive effect shall, pursuant to R. 223.2 RoP, set out (a) the reasons why the lodging of the appeal shall have suspensive effect and (b) the facts, evidence and arguments relied on. This means that such an application must, in itself, enable the Court of Appeal to rule on it, where appropriate even without further information. References to passages in pleadings and documents from the first-instance case file are permissible, provided that they are identified with sufficient precision. b) Manifest errors cannot be established without knowledge of the grounds for the decision 13. A manifest error in the impugned decision cannot be established. Where, as in the present case, the grounds for the decision are not yet available, the finding of a manifest error in the contested decision can only be assumed if the existence of an obvious error can be established without knowledge of the grounds for the decision. This would, for instance, be the case where the operative part pronounces a legal consequence that derives neither from the Agreement on a Unified Patent Court nor from the Rules of Procedure. 14. Whether the Local Division disregarded the requirements of urgency or manifestly misjudged them cannot be determined without knowledge of the grounds for the decision. A manifest error in the first-instance decision presupposes that the factual findings or legal considerations that underpin the 5 order or decision at first instance already prove to be flawed in the summary examination that is to be carried out (Belkin/Philips, para. 60). 15. The same applies insofar as Rivolution alleges that the Local Division’s balancing of interests must be erroneous. It should only be added, by way of clarification, that irreparable harm is not a necessary condition for ordering provisional measures (cf. Mammut/Ortovox, para. 237). 16. Insofar as Rivolution also challenges the cost decision as erroneous, the grounds for the decision are required in order to establish a manifest error of law. The unsuccessful party is not in every case required to bear the costs; rather, considerations of equity may justify a different assessment (cf. Art. 69(1) and (2) UPCA). Insofar as Rivolution objects to the cost order in relation to Ethicon, it should be noted that Rivolution’s appeal has thus far been directed only against Cilag. 17. The same applies insofar as Rivolution alleges a manifest error in respect of the absence of an order requiring security for enforcement. Whether the discretion vested in the Court of First Instance (cf. UPC Court of Appeal, order of 21 May 2025, UPC CoA 365/2025, APL 19216/2025, App 21951/2025, Knaus Tabbert/Yellow Sphere et al., para. 22) was exercised in an evidently erroneous manner can, as a rule, only be assessed on the basis of the grounds for the decision. c) Procedural defects 18. The allegation that the Local Division infringed the right to be heard and the right to a fair trial does not lead to a different assessment. In the absence of other indications, this allegation relates to the assessment of the issues of urgency, costs, and security for enforcement. d) Balancing of interests 19. Nor does a balancing of interests exceptionally justify a different assessment in the present case. Since Rivolution does not contend that the Local Division wrongly affirmed a patent infringement, Rivolution is in any event obliged to refrain from the acts prohibited to it. Rivolution has also failed to demonstrate that it suffers any disadvantage with respect to the cost decision that would be untenable. II. Application for an extension of the time period for submitting the Statement of grounds of appeal 20. Insofar as Rivolution requests an extension of the time period for lodging the Statement of grounds of appeal, Rivolution is reminded that the 15-day period for lodging the Statement of grounds of appeal only begins upon service of a reasoned decision (R. 224.2(b) RoP, UPC Court of Appeal, Order of 12 July 2024, UPC CoA 328/2024, PR APL 36389/2024, Ballino/Kinexon et al.). No reasons are apparent why this time period should be extended to four weeks. Rivolution is therefore requested to indicate whether the application is withdrawn. ORDER: I. Rivolution’s Application for an order for suspensive effect is rejected. II. Rivolution is given the opportunity to indicate, within three days, whether Applications Nos. 2 and 3 are withdrawn. Issued on 15 August 2025 6 Patricia Rombach, legally qualified judge and judge-rapporteur

Key Holdings

• An appeal to the UPC Court of Appeal does not automatically have suspensive effect; it must be granted by the Court upon a motivated request, weighing the appellant's interest in maintaining the status quo against the respondent's interest in enforcement (Art. 74(1) UPCA).
• Suspensive effect may be granted if the impugned order is manifestly erroneous, if its enforcement would render the appeal largely purposeless, or if fundamental procedural rights (like the right to be heard) were violated.
• When the grounds for a first-instance decision are not yet available, a 'manifest error' can only be established if an obvious error is apparent without knowing the reasons, such as a legal consequence in the operative part not derived from the UPCA or Rules of Procedure.
• Allegations regarding disregarded urgency, flawed balancing of interests, or erroneous cost decisions typically require knowledge of the first-instance decision's grounds to establish a manifest error.
• The 15-day period for lodging the Statement of grounds of appeal commences only upon service of a reasoned decision (R. 224.2(b) RoP).

Tags

• Appeal Proceedings
• Balance of Interests
• Costs
• Fair Trial
• Infringement
• Interim Measures
• Manifest Error
• Right to be Heard
• Security for Costs
• Suspensive Effect
• Urgency

Related Rules

• Art. 7 – The Court of First Instance
• Art. 6 – The Court
• Art. 6 – The Court

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