UPC_CoA_935/2025 – Applicant (X) v Amycel

Expert Commentary

Suspensive effect / default judgment Facts 1. The Local Division of The Hague granted a PI against X after inter partes proceedings on 31 July 2024. 2. On 30 August 2024, Amycel started proceedings on the merits against X. 3. The Local Division of The Hague considered the Statement of Claim validly served via an alternative method of service (R. 275(3) RoP). 4. By order of 1 April 2025, the Local Division of The Hague ordered a decision by default to be taken because X’s representative had not timely filed a defence. 5. The decision by default was issued on 21 October 2025. 6. X filed an appeal against certain parts of the default judgment and asked for suspensive effect, basically arguing that it would be impossible to undo the decision as the message it was ordered to put on the internet would always stay on the internet, and lack of urgency. The Court of Appeal 1. The Court of Appeal dismisses the request for suspensive effect. 2. X failed to establish that the decision is manifestly erroneous. The consequences of the order do not become devoid of purpose even if the consequences of these orders (such as the sending of registered letters and putting messages on the internet) are not fully reversible. Comment 1. A decision by the full panel of the first chamber of the Court of Appeal which again shows the very exceptional nature of suspensive effect. 2. One can even see that irreversible consequences as such are not good enough if you do not show that the first instance decision is manifestly wrong. 3. Indeed, one cannot say that an appeal becomes devoid of purpose. If the appeal is successful, the Court of Appeal can order to send a correction letter to clients and also place a correction on the website. So irreversibility cannot be taken seriously. 4. The representative of X should have known better. It would have been much better for X to (at least after the PI proceedings) seek a settlement and avoid Amycel to make more costs in proceedings on the merits against which X did not want to defend himself. 5. As I understand this decision, you can appeal a default decision or you can ask the Division which granted the decision to set the decision aside. I find this somewhat strange. It seems to me that it is more logical that somebody first requests to set the decision aside. If it is correct that on appeal you cannot add new facts, then it seems to me that the appeal is entirely fought on the basis of the facts as put forward in first instance by the claimant. Very strange!

Full Decision Text

1 ORDER of the Court of Appeal of the Unified Patent Court issued on 16 January 2026 on an application for suspensive effect (R. 223 RoP) APPLICANT (DEFENDANT IN THE CFI INFRINGEMENT ACTION) (hereafter or the “Applicant”) represented by Michał Przyłuski, European Patent Attorney, UPC Representative RESPONDENT (CLAIMANT IN THE CFI INFRINGEMENT ACTION) AMYCEL, LLC, 260 Westgate Drive, 95076 Watsonville, California, United States of America (hereafter “Amycel”) represented by H.W.J. Lambers, attorney-at-law and other representatives of the firm of Vossius & Brinkhof UPC Litigators. PATENT AT ISSUE EP 1 993 350 DECIDING PANEL 1a Klaus Grabinski, presiding judge and president of the Court of Appeal Emmanuel Gougé, legally qualified judge and judge-rapporteur Peter Blok, legally qualified judge LANGUAGE OF THE PROCEEDINGS English Appeal Reference number: UPC CoA 000935/2025 2 IMPUGNED DECISION OF THE COURT OF FIRST INSTANCE □ Decision by default of the Court of First Instance of the Unified Patent Court, The Hague Local Division, dated 21 October 2025 □ Numbers attributed by the Court of First Instance: UPC CFI 499/2024 ACT 48877/2024 FACTS, REQUESTS AND SUBMISSIONS 1. AMYCEL filed an application for provisional measures against before The Hague Local Division of the Court of First Instance of the Unified Patent Court (hereafter “The Hague LD”) for infringement of the patent at issue. 2. Having heard the parties in inter-partis proceedings, the CFI ordered provisional measures against including a preliminary injunction to refrain from infringing the patent at issue (The Hague LD, order no. 44133/2024 of 31 July 2024). 3. On 30 August 2024 Amycel brought an infringement action against the Applicant before The Hague LD for infringement of the patent at issue. 4. The CFI, considering the steps taken by The Hague LD registry and by Amycel to bring the Statement of Claim to attention, considered the actions taken to be an alternative method of service of the Statement of Claim and, pursuant to R. 275.3 (b) RoP set the date on which the Statement of Claim was deemed to have been served (The Hague LD, order of the judge-rapporteur of 19 December 2024). 5. By Order of 1st April 2025, The Hague LD found that, in the context of the specific circumstances of the proceedings, the representative of has not taken all due care to avoid the late filing of the Statement of defence and ordered a decision by default be taken in the infringement action under R. 355 RoP. 6. In its decision by default of 21 October 2025 (the impugned decision), The Hague LD held liable for infringement of the patent at issue. It ordered inter alia to send a registered letter to the parties to whom it offered for sale, sold, delivered or otherwise traded in the infringing product - namely the mushroom strain Cayene - informing them of the impugned decision and requesting them to return any current stock of the infringing products (operative part, para III), to publish a message on the website of informing about the impugned decision (operative part, para IV) and to pay Amycel EUR 50,000. - as an interim award of damages (operative part, para VIII). 7. The Applicant filed an appeal against the impugned decision and, insofar as part III, IV and VIII of said decisions are concerned, an application for suspensive effect pursuant to R. 223 RoP (Statement of appeal of 22 December 2025 as modified on 13 January 2026 following a request for correction). 8. The Applicant mainly argues that part III and IV of the impugned decision would be impossible to revert should the impugned decision be set aside, emphasizing that “any information published on the internet will stay there forever and thus the Court should be very careful with such orders with irreversible consequences” and that “there is no urgency in the publication requests”. Concerning 3 part VIII of the impugned decision, the Applicant is of the opinion that “it is not clear if when the decision is set aside, would [the] funds be returned to [the Applicant]” and emphasizes that the payment of the interim award of damages would have serious consequences on this business. GROUNDS FOR THE ORDER 9. The application for suspensive effect is admissible but must be dismissed for the following reasons. No valid grounds for suspensive effect 10. 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). According to R. 223.2 RoP, the application for suspensive effect shall set out (a) the reasons why the lodging of the appeal shall have suspensive effect and (b) the facts, evidence and arguments relied on. 11. The Court of Appeal therefore grants the application only if the circumstances of the case justify an exception to the principle that an appeal shall have no suspensive effect. It must be examined whether, on the basis of these circumstances, the appellant's interest in maintaining the status quo until the decision on its appeal exceptionally outweighs the respondent's interest. An exception to the principle that an appeal has no suspensive effect may apply, for instance, if the appealed order or decision is manifestly erroneous, or if the appeal becomes devoid of purpose in the absence of suspensive effect (CoA 24 November 2025, UPC CoA 000911/2025, Suinno v Microsoft; CoA 20 May 2025, UPC CoA 430/2025 APL 23093/2025 App 23094/2025, Chint v. Jingao). 12. The requirement of exceptional circumstances has to be established by the applicant. The Applicant has not evidenced the existence of exceptional circumstances which would justify why the lodging of the appeal shall have suspensive effect. 13. The Applicant has merely claimed that the sending of registered letters (part III of the impugned decision) would be impossible to revert and that the publication of a message on the website of the Applicant (part IV of the impugned decision) would entail "irreversible consequences”, without establishing that the impugned decision is manifestly erroneous. Even if the Court were to accept that the consequences of these orders are not fully reversible, it does not follow that the appeal becomes devoid of purpose in the absence of suspensive effect and that the Applicant's interest in maintaining the status quo until the decision on appeal outweighs Amycel's legitimate interest informing the Applicant’s customers of the decision. 14. The Applicant has failed to demonstrate that his interest in not paying interim damages until the decision on its appeal exceptionally outweighs the respondent's interest. The mere assertion of “serious consequences” on the Applicant’s business, without any further substantiation, is not sufficient to outweigh Amycel’s interest in the enforcement of the CFI decision. Amycel not heard 15. The Court of Appeal decides without having heard Amycel, since the Court of Appeal must decide on an application for suspensive effect without delay (R. 223.3 RoP) and the outcome is in favour of Amycel. 4 ORDER The application for suspensive effect is rejected. This order was issued on 16 January 2026. Klaus Grabinski, presiding judge and president of the Court of Appeal Emmanuel Gougé, legally qualified judge and judge-rapporteur Peter Blok, legally qualified judgePeter Hendrik Blok Digitally signed by Peter Hendrik Blok Date: 2026.01.15 19:04:21 +01'00'KLAUS STEFAN MARTIN Grabinski Digitally signed by KLAUS STEFAN MARTIN Grabinski Date: 2026.01.15 21:11:14 +01'00'Signé numériquement par EMMANUEL, LUCIEN, RENÉ GOUGÉ Date : 2026.01.16 08:40:15 +01'00' EMMANUEL, LUCIEN, RENÉ GOUGÉ

Key Holdings

• Suspensive effect for appeals is of a very exceptional nature and requires demonstrating that the first instance decision is manifestly erroneous.
• Irreversible consequences of an order (e.g., public messages) are not sufficient grounds for suspensive effect if the appeal can still provide a remedy (e.g., correction letters).
• The decision highlights the importance of timely defence and considering settlement to avoid default judgments and further costs.
• The comment discusses the procedural options for challenging a default judgment: direct appeal or request to set aside the decision at first instance.

Tags

• Appeal
• Default Judgment
• Interim Measures
• Suspensive Effect

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