UPC_CoA_76/2026 – Xingi v Avient
- Court
- Court of Appeal
- Date
- Outcome
- Granted
- Sector
- Other
- Decision Type
- PROCEDURAL
Expert Commentary
Further suspension Facts 1. On 26 May 2026, the Court of Appeal granted suspensive effect of an order of the JR of The Hague Division until 15 July 2026. 2. The reason for this grant was the fact that, in order to comply with the order of the JR, the claimant would have to obtain an export licence from the Chinese authorities. 3. Xingi now asks for an extension of that suspensive effect, claiming that it needs more time to obtain an export licence. 4. Avient claims that Xingi is not doing its best to obtain the export licence. The JR of the Court of Appeal As the date of the appeal hearing is already known, the JR grants a further suspension until the decision of the Court of Appeal. Comment While this is a practical solution, it is not very satisfactory if it is true that Xingi is not doing everything possible to obtain the licence. At the very least, the JR could have ruled that Xingi should (continue to) use its best efforts to obtain a licence in the meantime, threatening a penalty if it does not do so.
Full Decision Text
Court of Appeal of the Unified Patent Court UPC-COA-76/2026 ORDER 14 July 2026 Patent at issue: EP 2 791 402 APPELLANTS (DEFENDANTS IN THE INFRINGEMENT PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) 1) Xingi Technology CO.,Ltd., No. 26 Xianghai Road, Yangkou Town, Rudong Country, 226407, Nantong City, Jiangsu Province, CN 2) Jiangsu Jiuzhou Xingji High-Performance Fiber Products Co., Ltd., No. 128 JialingJiang Road, Rudong Economic Zone, 226400, Jiangsu, CN represented by Michael Rüberg, Lars Oliver Eggersdorfer and Karl-Heinz Metten, Boehmert & Boehmert RESPONDENT (CLAIMANT IN THE INFRINGEMENT PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE) Avient Protective Materials B.V., Urmonderbaan 22, Building 200, 6167 RD, Geleen, NL represented by Tjibbe Douma, Laurens Buijtelaar, Philippa van Henge and Andreas Obermeier, Bird & Bird PANEL Panel 1b Klaus Grabinski, presiding judge and president of the Court of Appeal Paolo Catallozzi, legally qualified judge and judge-rapporteur Emmanuel Gougé, legally qualified judge DECIDING JUDGE This order has been issued by the judge-rapporteur 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, The Hague Local Division, dated 11 May 2026 Numbers attributed by the Court of First Instance: UPC_CFI_478/2025 and 585/2026 **SUMMARY OF FACTS** 1. By order of 11 May 2026, the judge-rapporteur of the Court of First Instance, Local Division The Hague, partially granted the respondent’s application under Rule 190 RoP and ordered, inter alia, the production of certain UD Fabric samples and of the English versions of the appellants’ Introduction Video. The order was immediately enforceable. 2. The appellants lodged an appeal against that order and simultaneously applied for suspensive effect pursuant to R. 223 RoP. 3. By order of 26 May 2026, the Court of Appeal partially granted the application for suspensive effect and extended the time for compliance with the production order until 15 July 2026. In doing so, the Court took into account the appellants’ submissions concerning Chinese export-control requirements applicable to the export of the requested samples and required the appellants to pursue the relevant administrative procedures with all due diligence. 4. On 7 July 2026, the appellants filed an application seeking a further extension of the suspensive effect granted by the Court’s order of 26 May 2026. They submit that, notwithstanding the steps taken in compliance with that order, the export authorisation procedure required under applicable Chinese export-control legislation remains pending and allegedly prevents the lawful export of the samples concerned. 5. The appellants therefore request, principally, that the suspensive effect be extended until 15 August 2026. In the alternative, should the Court determine the appeal before that date and uphold, in whole or in part, the contested production order, they request that the Court specify that any obligation to comply with that order shall not become enforceable before a reasonable period for compliance has elapsed, taking into account the export-control procedure and the time required for shipment of the samples. In the further alternative, they request that the suspensive effect be extended until service of the Court’s decision on the appeal. 6. By observations filed on 10 July 2026, the respondent requests that the application be dismissed. It submits, in essence, that the appellants have failed to establish the conditions upon which the order of 26 May 2026 made the extension of the time limit dependent. According to the respondent, the delays disclosed in the appellants’ application are attributable to their own conduct, the alleged export-control restrictions remain insufficiently substantiated and the balance of interests continues to favour prompt compliance with the production order. **GROUNDS FOR THE ORDER** Admissibility. 7. The application is admissible. It is based on circumstances allegedly arising after the order of 26 May 2026 and seeks a modification of the time limit for compliance previously fixed by this Court. Merits. 8. By order of 26 May 2026, this Court partially granted the appellants’ application for suspensive effect. In doing so, the Court accepted, on a prima facie basis, that the export of the materials covered by the production order was subject to the applicable Chinese export-control regime, that compliance with that regime required the completion of administrative procedures incompatible with the time limit fixed by the judge-rapporteur and that non-compliance with those requirements could expose the appellants to significant adverse consequences. The Court therefore concluded that immediate enforcement risked rendering the appeal largely ineffective and extended the time limit for compliance until 15 July 2026. 9. In that order, the Court further stated that the appellants were required to pursue the necessary administrative procedures with due diligence and that any delay exceeding the time reasonably required for that purpose would, save in exceptional and duly substantiated circumstances, be regarded as unjustified and attributable to them. 10. The material submitted in support of the present application indicates that the administrative procedure relating to the export authorisation remains pending. Accordingly, the circumstances on which the Court based its previous prima facie assessment have not ceased to exist. For the purposes of the present application, the Court does not consider it necessary to make any finding regarding the reasons for the current duration of that administrative procedure. 11. The oral hearing in the appeal proceedings has already been scheduled and a decision on the appeal is expected within a short period. In these circumstances, the Court considers it appropriate to maintain the status quo until the appeal has been determined. Such an extension is consistent with the purpose for which suspensive effect was originally granted, namely preserving the practical effectiveness of the pending appeal. 12. In light of the foregoing, the Court considers it appropriate to extend the suspensive effect until service of the decision on the appeal. There is therefore no need to decide separately on the appellants’ alternative requests. **ORDER** The Court extends the suspensive effect granted by the order of the Court of Appeal of 26 May 2026 until service of the Court’s decision on the appeal. Issued on 14 July 2026. Paolo Catallozzi, legally qualified judge and judge-rapporteur
Key Holdings
- Suspension of an order can be granted pending appeal, especially when compliance requires external permits.
- The Court of Appeal's Judicial Registrar can grant further suspension until the appeal decision is rendered.
- The need to obtain an export license from foreign authorities can justify a request for extended suspensive effect.
- A critique suggests that suspension orders should ideally include a 'best efforts' clause to ensure compliance efforts.
Tags
- Suspension
- Appeal
- Procedural
- Export License
- Judicial Registrar