Astellas Institute for Regenerative Medicine v Healios K.K (CFI, 20 November 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 20 November 2023 (UPC_CFI_80/2023, ACT_465342/2023, App_577540/2023), panel 1 of the Munich Central Division (U. Voß, presiding, A. Kupecz, judge-rapporteur, P. Gerli, technically qualified judge) rejected the request of Healios K.K and Osaka University, proprietors of EP 3 056 564, to stay the revocation action brought by Astellas Institute for Regenerative Medicine pending the EPO opposition, in which the Opposition Division hearing is set for 4 March 2024. Leave to appeal was granted.

Question

Does an Opposition Division decision expected shortly, but open to appeal, justify a stay under Art. 33(10) UPCA and Rule 295(a) RoP?

Decision

The « rapid » decision referred to in Art. 33(10) UPCA need not be the final EPO decision: any relevant decision expected rapidly may suffice, provided a concrete and near date is established. The panel doubts that a decision expected in just over three months is rapid, but assumes that it is. An appeal is highly likely, the defendants having given no undertaking not to appeal, and a final decision is expected around mid-2028. The claimant’s interest in early legal certainty outweighs the saving in costs. The risk of conflicting decisions does not make a stay proportionate at this stage. The action continues at least until the interim conference of 14 March 2024, the panel stating that it is minded to postpone the hearing or stay if the patent is revoked.

Key points for practice

• Practical point: an imminent Opposition Division hearing is not enough, the proprietor must show that a final decision is near or undertake not to appeal.

Provisions applied

Agreement on a Unified Patent Court

Art. 33(8) and (10) and Art. 73(2)(b)(ii)

Rules of Procedure

Preamble points 2, 4, 5 and 8, Rules 220.2, 224.1(b), 295(a) and 296.3

European Patent Convention

Art. 106(1)

Case law cited

Edwards Lifesciences v Meril Italy, Paris Central Division, 13 November 2023

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.