UPC_CoA_810/2024 – Curio v 10x Genomics

Expert Commentary

Suspensive effect Background On 3 December 2024, the LD Düsseldorf ordered Curio to provide security for costs of € 200.000 within 4 weeks. On 16 December 2024, Curio filed an appeal, and separately applications for suspensive effect and for a decision on this application by the standing judge in view of the extreme urgency. Curio argued that the order was manifestly wrong. Court of Appeal 1. The application for suspensive effect dismissed. 2. The standing judge can dismiss the application without a hearing. 3. In cases of extreme urgency, the applicant may apply to the standing judge, but an order for suspensive effect will only be given under exceptional circumstances, especially if it concerns an order as meant in R. 220.2 RoP for which you need leave for appeal. 4. Extreme urgency was not established, as the argument of Curio is that the order is manifestly wrong. However, extreme urgency and manifestly wrong are separate and distinct criteria. 5. Whether or not the order is manifestly wrong will be decided at the end of the appeal proceedings. 6. In addition, the Court does not consider the circumstances of the present case to be of such an exceptional nature that the interests of Curio outweigh the interests of 10x Genomics and the principles of due process. Comment 1. Lessons for representatives! 2. Do not bother the standing judge if your request for suspensions is not truly urgent (and I would add: really urgent in the sense that if the decision is not immediately suspended, the consequences are truly serious; for instance a preliminary injunction of which the execution leads to very serious consequences). 3. If you think a decision is manifestly wrong, then that (of course) does not necessarily mean that a suspension of the decision is extremely urgent. 4. It seems to me that it is difficult to argue that your request is extremely urgent if you need (as in this case) 13 days yourself to file your request. The standing judge decided within a day! 5. As Curio now wanted the standing judge to decide, they got a quick decision: no suspensive effect. 6. If there is indeed extreme urgency, it is wise to ask (certainly as an alternative) for a suspension until the Court decides on the request for suspensive effect. 7. In this case (assuming the order is manifestly wrong), it would have been better to the Court of Appeal for suspensive effect ask or two days after receipt of the order, convincingly arguing that the decision was manifestly wrong and pointing to the four weeks term for complying with the order. 8. Anyway, you wonder if this is not much ado about nothing. Curio, a US biotech company, decided to litigate in the UPC. You may assume that they were warned by their representatives about the possibility that they would have to provide security for costs (different from US litigation where (in normal cases) parties have to bear their own costs). The amount (200k) does seem unexpectedly high.

Full Decision Text

1 Reference no.: UPC_CoA_810/2024 App_66516/2024 Order of the Court of Appeal of the Unified Patent Court issued on 17 December 2024 concerning an application for suspensive effect (Rule 223.4 RoP) HEADNOTES: The requirement of an extreme urgency under R 223 RoP has to be established by the applicant. In the present case, the applicant has not evidenced the existence of an extreme urgency. KEYWORDS: Suspensive effect of the appeal, R 223 ROP. APPELLANT AND DEFENDANT IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE Curio Bioscience Inc., 4030 Fabian Way, Palo Alto, CA 94303, USA (hereafter referred to as “Curio” or “applicant”) represented by Cameron Marshall and Agathe Michel-de Cazotte, UPC representatives, Carpmaels & Ransford LLP RESPONDENT AND CLAIMANT IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE 10x Genomics, Inc., 6230 Stoneridge Mall Road, 94588-3260 Pleasanton, CA, USA (hereafter referred to as “10x”) represented by Professor Dr. Tilman Mueller-Stoy and Dr. Axel Berger, UPC representative, Bardehle Pagenberg PATENT AT ISSUE European patent 2 697 391 B1 LANGUAGE OF THE PROCEEDINGS English DECIDING JUDGE Emmanuel Gougé, Legally qualified judge and Standing judge IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE □ Order of the Court of First Instance of the Unified Patent Court, Düsseldorf Local division, dated 03 December 2024 2 □ Reference numbers: App_48598/2024 ORD 48718/2024 ACT 15774/2024 UPC_CFI_ 140/2024 SUMMARY OF THE FACTS AND REQUESTS 1. On 03 December 2024, the Düsseldorf local division ordered Curio, inter alia, to provide security for legal costs and other expenses to the Claimant in an amount of EUR 200,000 within four weeks from the date of service of the order and granted leave to appeal (see impugned order for further details). 2. On 16 December 2024, Curio filed an appeal under Rule 220.2 RoP (PR_APL_65956/2024 UPC_CoA_805/2024) against said order. 3. Curio filed a separate R 223.4 RoP application for suspensive effect in which it requests the impugned order be given suspensive effect and the application for suspensive effect be decided by the standing judge given the extreme urgency of the application pursuant to R 223.4 RoP. 4. According to Curio, the impugned order is manifestly wrong to the extent it has granted a security for costs to the claimant in the main action because it is contrary to Art. 41(1) UPCA and considers that there is extreme urgency which justifies an order from the standing judge under R 223.4 RoP. REASONS FOR THE ORDER 5. The application for suspensive effect must be dismissed for the following reasons. 6. A dismissal of the application without hearing the respondent is possible within the scope of the discretion of the standing judge under R 223.4 RoP. 7. An appeal shall not have suspensive effect unless the Court of Appeal decides otherwise at the motivated request of one of the parties (Article 74.1 UPCA). 8. In cases of extreme urgency the applicant may apply at any time without formality for an order for suspensive effect to the standing judge (R 223 RoP, first sentence), notwithstanding the provisions of R 223.5 RoP. Suspensive effect, however, shall only be given under exceptional circumstances, especially if the appealed order concerns an order as meant in R 220.2 RoP (see CoA order in ICPillar v ARM, 19 June 2024, ORD_36664/2024, App_35055/2024). 9. The requirement of an extreme urgency has to be established by the applicant. In the present case, Curio has not evidenced the existence of an extreme urgency. 10. Instead, Curio has merely claimed that, if the application for suspensive effect is not treated with extreme urgency, Curio will either be forced to comply with a manifestly wrong order or face the risk of an order for a decision by default on the basis of a manifestly wrong order. 11. Although the criteria of extreme urgency under R 223.4 RoP is clearly distinct from, and does not require, the assessment as to whether the impugned order is “manifestly wrong”, Curio has not convinced the Court that the CFI was manifestly wrong considering the wording of R 158 RoP. Whether the CFI has given a correct interpretation of R 158 RoP regarding Art. 69(4) UPCA will have to be decided by the Court of Appeal at the end of the appeal proceedings. 3 12. In addition, the Court does not consider the circumstances of the present case to be of such an exceptional nature that the interests of Curio outweigh the interest of 10x and the principles of due process. ORDER The application for suspensive effect is rejected. This order is issued on 17 December 2024. Emmanuel Gougé Legally qualified judge and standing judge

Key Holdings

• The Court of Appeal dismissed an application for suspensive effect of an order to provide security for costs.
• The standing judge can dismiss such applications without a hearing, especially if extreme urgency is not established.
• Extreme urgency is a distinct criterion from an order being 'manifestly wrong', and arguing the latter does not automatically imply the former.
• Suspensive effect will only be granted under exceptional circumstances, particularly for orders requiring leave to appeal.
• The Court found no exceptional circumstances where the applicant's interests outweighed the respondent's or principles of due process.

Tags

• Appeal
• Security for Costs
• Suspensive Effect
• Urgency

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