Carrier v BITZER Electronics (CoA, 28 May 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 28 May 2024 (UPC_CoA_22/2024, APL_3507/2024), the Court of Appeal, presided over by Klaus Grabinski, dismissed Carrier Corporation’s appeal against the Paris Central Division’s order of 8 January 2024 (UPC_CFI_263/2023), which had refused to stay BITZER Electronics A/S’s revocation action against EP 3 414 708 pending EPO opposition proceedings.

The order states the principle: the UPC will, as a rule, not stay proceedings because of a parallel opposition, and will do so only where a rapid decision of the EPO may be expected. For proprietors, a request to accelerate the opposition is not enough to obtain a stay.

Facts and procedure

The patent, concerning adaptive sensor sampling in a cold chain distribution system and validated in France, Germany and the United Kingdom, was opposed by BITZER at the EPO on 28 June 2023 and, the next day, made the subject of a revocation action against claim 1 before the Central Division (paragraphs 3 and 4). Carrier requested accelerated opposition proceedings on 1 November 2023 and a stay on 1 December 2023 (paragraphs 5 and 6). The Central Division refused the stay and granted leave to appeal (paragraph 8). On 28 March 2024 the EPO stated that it could not bring forward the oral proceedings, which remained set for 25 October 2024 (paragraph 13), whereas the Central Division hearing was scheduled for 21 June 2024 (paragraph 30).

On appeal, Carrier was allowed to amend its statement twice, as the amendments did not unreasonably hinder the respondent (paragraphs 14, 15, 19 and 20). The Court held that it was properly composed without a technically qualified judge, since the question required no technical knowledge (paragraphs 16 and 17), and declined a referral to the Court of Justice, as no question of interpretation of EU law arose (paragraph 18).

The applicable law

Art. 33(10) UPCA and Rule 295(a) RoP allow the court to stay proceedings where opposition proceedings are pending before the EPO and a rapid decision may be expected. That power is exercised in light of the aim of expeditious proceedings set out in the preamble to the Rules of Procedure, under which the oral hearing should normally take place within one year.

Question

Must the UPC stay a revocation action pending a parallel EPO opposition in which acceleration has been requested?

Decision

No. As a general principle, the court will not stay proceedings (paragraph 23). Parallel proceedings before the EPO and the UPC are permitted. Where one maintains the patent and the other revokes it, the revocation prevails (paragraphs 24 and 25). A stay may be considered only where a rapid decision of the EPO may be expected, and is then a matter for the court’s discretion. Acceleration of the opposition is not sufficient in itself (paragraphs 26 and 27).

Here, no opposition decision could be expected before 25 October 2024, and even if accelerated the opposition could not be decided before the revocation action, whose decision was expected much earlier (paragraphs 28 to 30 and 32). A stay would moreover have to last until the opposition decision became final, which is clearly at odds with the one-year guideline (paragraph 31). The remaining arguments were rejected: the claim amendment issue did not show that a stay would help (paragraph 33), the respondent’s reluctance to accept earlier EPO dates did not deprive it of its interest in a rapid decision (paragraph 34), and there was no breach of the right to be heard (paragraphs 35 to 37). The appeal was dismissed.

Key points for practice

• A stay pending opposition remains the exception. It requires that a rapid EPO decision be expected, which a mere request for acceleration does not establish.
• The Court compares the foreseeable timetables of both proceedings in concrete terms. Where the UPC will decide first, a stay is ruled out.
• An appeal on a purely procedural question may be heard by a panel of legally qualified judges only.
• Practical point: a proprietor seeking a stay must show, with supporting evidence, that the EPO will decide before the UPC, otherwise it should prepare its defence on the merits and its amendments according to the UPC timetable.

Provisions applied

Agreement on a Unified Patent Court

Arts. 33(10), 41(3) and 42

Rules of Procedure

Rules 263, 295(a) and 298

Case law cited

Sanofi-Aventis Deutschland v Amgen, Court of Appeal, 13 October 2023 (UPC_CoA_320/2023), Guangdong OPPO Mobile Telecomm v Panasonic, Court of Appeal, 18 December 2023 (UPC_CoA_472/2023), Ocado Innovation v Autostore, Court of Appeal, 10 January 2024 (UPC_CoA_404/2023), Court of Appeal, 3 April 2024, UPC_CoA_433/2023 and others

Related decisions

• Carrier v BITZER Electronics, 8 January 2024, Central Division order refusing the stay, under appeal.

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.