A guide to the UPC and the UP - Flipbook - Page 435
Cost Decisions
21-18 A party adversely affected by a decision on costs 28 can lodge an application for
leave to appeal to the Court of Appeal. 29
New Facts and Evidence
21-19 An appeal against a decision or an order of the Court can be made on points of law or
matters of fact. When making its decision, the Court of Appeal will have regard to requests,
facts, evidence and arguments in the statement and grounds of appeal, the response and
any reply to a cross-appeal. It will also consult the file of proceedings before the Court of First
Instance, but no new requests, facts, or evidence can be introduced into the proceedings,
unless allowed in by the Court of Appeal. The Court of Appeal, in exercising its discretion,
will have regard to the following: 30
–
Whether a party seeking to lodge new submissions is able to justify that the new
submissions could not reasonably have been made during proceedings before
the Court of First Instance;
–
The relevance of the new submissions for the decision on the appeal; and
–
The position of the other party regarding the lodging of the new submissions.
21-20 The rules are seemingly written with the intention that the Court of Appeal will take a
strict approach to the introduction of new evidence. The German appeal courts are also
bound by law to follow a very strict approach, if a party is trying to introduce new evidence
at the appeal stage. New means of challenge or defence are only admitted if they (i) concern
an aspect that the court of first instance has recognisably failed to see or has held to be
insignificant; (ii) were not asserted in the proceedings before the court of first instance due
to a defect in the proceedings; and (iii) were not asserted in the proceedings before the
court of first instance, without this being due to the negligence of the party. 31 Means of
challenge or defence that were rightly dismissed in the proceedings before the court of
first instance remain ruled out in second instance. 32 If a party, is in exceptional circumstances,
allowed to introduce new evidence, it must do so early, either with the statement of appeal
or the statement of response. 33
Application for Suspensive Effect
Effects of an Appeal Against a Decision
21-21 The effects of an appeal are set out in art.74 UPCA. The general rule is that an appeal shall not
have suspensive effect unless specifically decided by the Court of Appeal, which is made on a
case-by-case basis and at the “motivated” request of one of the parties. 34 Therefore, an appeal
by a defendant against a decision that a patent is infringed will not automatically suspend the
subsequent procedure for the determination of damages and compensation.
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34
Following the procedure set out in rr.150 to 157 RoP.
r.221 RoP.
arts 73(3) and (4) UPCA and r.222 RoP.
s.531(2) German Code of Civil Procedure.
s.531(1) German Code of Civil Procedure.
s.530 German Code of Civil Procedure.
In some jurisdictions this is expressed as “staying” or “freezing” the appealed decision.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 425
