Latest substantive UPC decisions

• Insulet filed an ex parte application for provisional measures against Menarini for alleged infringement of its patent relating to an insulin patch pump. Insulet claimed that Menarini infringed through offering and selling pumps of which it is an exclusive European distributor for the South Korean company EOPatch. Insulet requested a preliminary injunction, as well as ancillary measures including a declaration of origin and distribution channels, identification of all parties involved and delivery up. The requirements for an ex parte order were not met and the Milan LD allowed Menarini to submit responses and attend a hearing.
• With respect to preliminary injunctions, an applicant is required to provide reasonable evidence to satisfy the court with a sufficient degree of certainty (that is, more likely than not) that: i) it is entitled to initiate the proceedings under Article 47 UPCA; ii) the patent is valid; and iii) its rights are being infringed or that infringement is imminent. In this case, the court held that Insulet did not establish with a sufficient degree of certainty that the patent was valid.
• Menarini successfully argued to a sufficient degree that the patent lacked novelty and therefore the court considered it more likely than not that the patent was invalid. As such, the preliminary injunction was refused.
• Insulet had filed four auxiliary requests to amend the patent but the Milan LD followed previous UPC case law and held that the auxiliary requests in proceedings for provisional measures are not admissible prior to the main proceedings. The court rejected the assertion that the amendments were amendments to Insulet's case and therefore fell within Rule 263 RoP. Amendments to the case under Rule 263 RoP refer to modifications to the case: for example, the introduction of a new claim or the substitution of the original claim. In contrast, an application to amend a patent is governed by Rule 30 RoP and such a request can only be made in the main proceedings in a defence to a counterclaim for revocation or in a defence to a revocation action.

• This decision concerned Edwards' patent relating to a low profile delivery system for transcatheter heart valves. Edwards had commenced an infringement action against Meril in the Nordic-Baltic RD. In the meantime, an opposition was filed against the grant of the patent at the EPO. The EPO issued a preliminary non-binding opinion stating that the grounds for opposition prejudiced the maintenance of the patent and accelerated the opposition proceedings.
• Shortly after this, Meril filed counterclaims for revocation and in response Edwards filed applications to amend the patent. Meril also filed an application in the infringement proceedings requesting that the court stay the infringement proceedings pending a decision by the Opposition Division on the validity of the patent. The Nordic-Baltic RD rejected Meril's stay request, finding that it could be reasonably assumed that the Opposition Division's decision would be appealed and therefore the final decision from the EPO could not be expected rapidly as required by Article 33(10) UPCA and Rule 295(a) RoP.
• Meril filed an appeal at the Court of Appeal, requesting that the Nordic-Baltic RD's order be set aside and the infringement proceedings be stayed. The Court of Appeal referred the case back to the panel of the Nordic-Baltic RD that issued the order for further consideration of the request for a stay, on the grounds that it had erred in refusing to grant the requested stay solely on the basis of its finding that the final decision in the opposition proceedings could not be expected rapidly.
• The court stated that Article 33(1) of the UPC Agreement provides that the court may stay proceedings if a rapid decision may be expected from the EPO. Meril was correct to argue that provisions of Article 33(10) UPCA and Rule 295(a) RoP do not require a final decision of the EPO, and therefore that the proceedings may be stayed in expectation of a rapid decision of the Opposition Division. The Court of Appeal concluded that the approach of the Nordic-Baltic RD to making a decision was incorrect. It should have considered whether a rapid decision of the Opposition Division could be expected rather than a final decision, taking into account the balance of interests of the parties and other circumstances of the case.

• This decision concerned Meril's alleged infringement of Edwards' patent relating to a prosthetic heart valve. Separate validity proceedings were issued by Meril in the Paris CD and separate revocation counterclaims were initiated in the Munich LD. These revocation claims/counterclaims were consolidated by the Paris CD, which rejected the revocation action and maintained the patent in amended form. The decision was appealed.
• Here the Munich LD found that Meril's attacked embodiment made "direct and literal use of the patent, as upheld by the [Paris CD]". Accordingly, the court ordered an injunction against Meril. Meril argued against the territorial scope of the injunction, pointing to a disclaimer on its website noting that the infringing product was not available for sale in Germany. The Munich LD reminded Meril that under Article 34 UPCA injunctive relief (and other corrective measures) can be ordered with respect to all contracting member states in which the European Patent has effect and for which the decision has been requested, as long as an infringing act or the risk of infringement has been proved for at least one UPC member state.
• Meril argued that it had a proportionality defence to the infringement: namely, that the interests of third parties (patients with severe heart disease) and the public necessitated denial of full injunctive relief, recall and destruction of its products. In considering the interests of third parties and the public interest, the court will have regard to the possibility of the infringer entering into a licensing agreement or initiating proceedings for a mandatory licence. Meril's request for a mandatory licence in Germany had been rejected, with it being held to be an unwilling licensee – an assumption it was not able to dispel in these proceedings.
• Even though Meril was considered to be an unwilling licensee, the court still considered the interests of third parties and the public because they have no ability to influence a defendant's behaviour. Here, the court concluded that there was a need for Meril's XL-sized valve prosthesis. As such, the order for recall and destruction was limited so that it did not extend to XL devices scheduled for implantation in individual patients before a specified date.
• Meril had also made a preliminary objection that the court lacked jurisdiction over claims relating to periods prior to the UPCA coming into force on 1 June 2023. The Munich LD rejected this on the grounds that if, at the end of the transition period when the UPC has exclusive jurisdiction over all European patents, if it did not have jurisdiction over these claims, then no court would (even taking into account the statute of limitations, which it noted only applies if the defendant raises it in a timely manner).

• HP brought an infringement claim against LAMA in relation to two patents concerning printer cartridges (EP 230 and EP 669) in the Paris LD. LAMA contested the infringement and filed a counterclaim for invalidity.
• In interpreting the claims of the patents, the Paris LD applied the principles of claim construction laid out by the Court of Appeal in 10x Genomics v Nanostring.
• EP 230 was held to lack novelty as granted. To form part of the state of the art and to be lacking novelty, the invention must be found entirely in a single prior art document. EP 230 was also found to lack inventive step based on HP's conditional amendments and therefore its amendment request was rejected.
• EP 669 was held to be valid and infringed. When assessing infringement before 1 June 2023, it was not relevant to refer to sources of national law. The substantive source of law is Articles 25-26 UPCA.
• It was decided that each party would bear 50% of the costs as one patent asserted succeeded and the other failed.

This analysis is based on a machine translation of a decision not available in English.

• The court confirmed that, due to the front-loaded nature of UPC proceedings, failure by the parties  to set out their full case as early as possible could lead to the exclusion of the arguments.
• One of Juul's European Patents relating to a vaporisation device was revoked it its entirety for added matter (EP 115) and another was maintained as granted (EP 911). Both patents had been revoked by the EPO Opposition Division.
• The added matter approach taken with respect to EP 155 was similar to the approach deployed by the EPO Opposition Division. There was an omission in the original claim, which resulted in a new combination of features. An amendment is seen as adding subject-matter that extends beyond the content of the application as filed and is not permitted if the overall change in the content of the application (whether an addition, alteration or removal) results in the skilled person being presented with information which is not directly and unambiguously derivable from that previously presented in the application, even when taking into account information implicit to the skilled person.
• In assessing inventive step with respect to EP 991, the Paris CD stated that "an invention shall be considered as involving an inventive step if, having regard to any element that forms part of the state of the art, it is not obvious to a person skilled in the art" (emphasis in original). It added that limiting the evaluation of inventive step to certain elements of the prior art, e.g. a document perceived to be "the closest prior art", involved the risk of introducing subjective elements into the assessment. However, for reasons of procedural efficiency it may be justified in reducing the evaluation of other elements of the prior art to a minimum. The Paris CD noted that what is to be evaluated in the inventive step assessment is "an activity". An activity can be motivated by an underlying problem. The court stated that it is then decisive "whether what is claimed as an invention did or did not follow from the prior art in such a way that the skilled person would have found it in his attempt to solve the underlying problem on the basis of its knowledge and skills, for example by obvious modifications of what was already known".

• Oerlikon owns the patent at issue relating to a false twist texturing machine and alleged that Bhagat had infringed it by the promotion and public offering of its texturing machine that was exhibited at a trade fair.
• Bhagat did not contest the validity of the patent or the alleged infringement of the patent by its machine exhibited at the trade fair. Accordingly, as a result of Rule 171.2 RoP, the infringement had to be held to be proved.
• The Milan LD granted a permanent injunction against Bhagat because the risk of repetition of the promotion and advertising of its infringing machine was "persistent" and the threat of sale was also imminent. The court was persuaded to grant the order on the basis that the evidence would no longer be available following the end of the trade fair.
• Instead of denying infringement or challenging the validity of the patent, Bhagat requested that the court stay the proceedings under Rule 295(m) RoP (discretion to stay proceedings where proper justice requires it) pending the outcome of ongoing parallel proceedings involving Oerlikon and a separate defendant, Himson Engineering, who had challenged the patent's validity. The Milan LD declined to stay the proceedings as Bhagat had conceded validity of the patent and had not supported the revocation counterclaim in the other action.
• Bhagat denied causing any damage to Oerlikon and requested costs – typically paid by the unsuccessful party under Article 69 UPCA – be reduced, emphasising its pre-trial cooperation and settlement efforts. As a result of these equitable reasons, the court decided that the costs should split 20% to be paid by Oerlikon and 80% to be paid by Bhagat.

This analysis is based on a machine translation of a decision not available in English.

• Aarke was found to have infringed SodaStream's patent relating to a device for carbonating liquids. The validity of the patent was not in dispute, although Aarke did attempt to rely on a Gillette defence to infringement (in short, that the alleged infringing act was actually disclosed in a prior art document).
• The Düsseldorf LD confirmed that the claim is the decisive basis for determining the patent scope but it should always be interpreted in the context of the description and the drawings. On this basis, the court rejected a literal reading to narrow the claim scope based on a preferred embodiment.
• The court stated that prior art should only be considered in relation to claim construction to the extent it is referenced in the patent. If the patent distinguishes itself from the prior art in a particular way, an interpretation negating that must be avoided. In this case, the court took into account the distinction from the prior art in detail and, as such, there was no room for the Gillette defence to be used in the way in which the defendant had tried.
• SodaStream's request for publication of the decision pursuant to Article 80 UPCA (publication in the public media) was rejected by the court on the basis that the injunction and damages awarded were a sufficient remedy. The court found that it was not apparent that the patent infringement had caused any lasting uncertainty among consumers that publication in the public media would need to remove.

• Valeo made an application for provisional measures, seeking an preliminary injunction against Magna with respect to its alleged infringement of a European Patent concerning electric machinery.
• The Düsseldorf LD granted a preliminary injunction against Magna, but still allowed Magna to meet existing customer obligations to BMW with respect to five particular machinery models. The court, therefore, included third party interests in its assessment of the balance of interests in the grant of the preliminary injunction.
• This decision illustrates the UPC's willingness to carry out a fairly substantial examination of validity in preliminary injunction proceedings when assessing if it is more likely than not that the patent is valid. In assessing whether the patent in suit is more likely than not to be invalid, the court held that the high revocation rates of patents in general challenged by opposition or revocation proceedings was irrelevant.

• This decision concerned a preliminary objection in which the Nordic-Baltic RD assessed the interaction between the UPC and the Belgian court in a case concerning alleged infringement of a European Patent relating to clothing construction.
• Sioen made a preliminary objection concerning the UPC's jurisdiction because of ongoing proceedings relating to a request for a declaration of non-infringement in Belgium. Texport later initiated infringement proceedings in the Nordic-Baltic RD. Subsequently, Sieon also started a revocation action in the Belgian courts. The Belgian court has declared, in a non-final decision, that it has jurisdiction with respect to the Belgian part of the patent but not with respect to other states where the patent is in force.
• The Nordic-Baltic RD held that according to Article 71c(2) of the recast Brussels Regulation, Articles 29 to 32 (the lis pendens rules) apply during the UPC transitional period. However, Articles 29 and 31 are only applicable if the two proceedings involve the same parties or their interests are so closely related that a judgment delivered against one of them would have the force of res judicata as against the other. In this case, the parties were not the same and nor were their interests indissociable. The court also considered Article 30 (concerning the discretion of courts other than that first seised to stay proceedings in related actions).
• The UPC opted not to stay its proceedings pending resolution of the national proceedings in Belgium as: (i) the subject-matter of the UPC proceedings differed in encompassing infringing acts in Latvia and in Portugal; and (ii) the oral hearing at the UPC was scheduled for February 2025, which was earlier than the oral hearing at the Belgian court scheduled for June 2025. The fact that Sioen initiated revocation proceedings in Belgium after Texport started infringement proceedings in the UPC was not in itself a reason to the stay the proceedings. In addition, the UPC had no information on the alleged grounds for revocation so could not assess the likelihood of success.

• Harvard's patent was revoked in its entirety. The patent as granted was revoked for lack of novelty and auxiliary request 1 was rejected for lack of inventive step over the same piece of prior art.
• There was a disagreement between the parties as to whether the skilled biological scientist would be familiar with both in vitro and in situ techniques for the detection of biomolecules. The court considered that no distinction was made in the disclosure of the patent and so the skilled person should have experience of both.
• The assessment of novelty requires the determination of the whole content of the prior publication, which must "directly and unambiguously" disclose the claim with all the features.
• The court assessed inventive step as whether it would be "obvious for the skilled person to, starting from a realistic prior art disclosure, in view of the underlying problem, arrive at the claimed solution" (without a reference to the EPO's problem-solution approach).
• In general, the Munich CD stated that a claimed solution is obvious if, starting from the prior art, the skilled person would have been motivated to consider the claimed solution and to implement it as a next step in developing the prior art. It may be relevant whether the skilled person would have expected any particular difficulties in taking any next step(s) and, depending on the facts of the case, it may be allowed to combine prior art disclosures. A technical effect or advantage achieved by the claimed subject matter compared to the prior art may indicate an inventive step. However, a feature selected in an arbitrary way out of several options cannot in general contribute to inventive step. The court emphasised that hindsight should be avoided.
• Harvard had made a preliminary objection regarding the jurisdiction of the UPC to hear the proceedings. The preliminary objection was later withdrawn and the parties agreed to submit to the jurisdiction of the court. However, the Munich CD held that the court must examine its international jurisdiction of its own motion when required under EU law as per the recast Brussels Regulation. The Munich CD held that it had international jurisdiction and that it would not stay proceedings due to German national revocation proceedings. Articles 29 and 31 of the recast Brussels Regulation did not apply as the parties to the proceedings before the UPC were different to those before the German court. The court declined to stay proceedings under Article 30 of the recast Brussels Regulation on the basis of a number of factors, including:
  
  • the parties had requested that the UPC issue a decision, including for the German part of the patent;
  • the CD proceedings were more advanced than those at the German appeal court; and
  • the Dutch and French parts of the patent were still in force and would have to be considered by the UPC regardless of the German proceedings.

• This was the first decision concerning a preliminary injunction application issued by the Lisbon LD. However, the application for provisional measures was ultimately rejected.
• Ericsson was found not to have acted with sufficient urgency in initiating the preliminary injunction proceedings. The court emphasised that the onus is on the claimant to establish that it has not delayed proceedings unnecessarily. When the applicant is silent about the date it became aware of the infringement and the court has no way of ascertaining it, the court may solely rely on the date of the alleged infringement when assessing unreasonable delay. This emphasises that the claimant must explicitly show urgency.
• The requirements for granting preliminary injunctions (validity of the patent, actual or imminent infringement, urgency and balance of interests) are cumulative, which allows the court not to address them all if one aspect is not satisfied. However, such an assessment may not always be possible at an early stage of the proceedings so the court may exercise discretion in assessing the other requirements presented by the parties.
• Ericsson failed to refute the defendants' argument that it would have known of the alleged infringement before its test purchase of the infringing products in May 2024, either after the launch of the products in 2019 and 2021 (which was publicised widely online) or as a result of concurrent proceedings between Ericsson and Lenovo in the US relating to the accused modules in October 2023 or separate ongoing SEP licensing negotiations between the parties to this action.
• Despite its finding on lack of urgency, the court still considered the issues of validity and infringement, finding the patent to be prima facie more likely to be valid and infringed than not.
• For the purposes of Article 25(a) UPCA, merely owning and operating an internet domain constitutes infringement if the infringing products are offered and/or sold on that domain.

• The Munich LD handed down a default decision against Arcora, which was found to have infringed i-mop's combined mopping and vacuuming cleaning device.
• The court has the discretion to grant a default judgment under Article 37(1) UPCA and Rule 355.1 RoP, provided that four conditions are met. Firstly, the claimant has requested the default judgment. Secondly, the defendant has failed to perform an action required of them within the specified period and the RoP provide for the issuance of a default judgment if the deadline is missed. Thirdly, the period for responding to the claim or counterclaim has expired and the claim or counterclaim was served in a way that allowed the defendant sufficient time to defend itself. Fourthly, there must be a substantive justification:  that is, the facts presented by the claimant and the procedural behaviour of the defendant do not mitigate against issuing the default judgment.
• In this case, all four conditions were met. This case underscores the need for the claimant to put forth a substantive justification for the default judgment. Here, after a substantive review of the merits of i-mop's case, the Munich LD found that i-mop had demonstrated that Arcora's embodiment made direct use of the technical teaching of its patent without i-mop's consent. Furthermore, no procedural behaviour of Arcora pointed against issuing the default judgment.

• These decisions related to joint infringement actions brought by Seoul Viosys in relation to two of its patents concerning light emitting diodes and revocation counterclaims brought by the second defendant.
• The Düsseldorf LD found that the fact that the invalidity counterclaim was only expressly raised by the second defendant and not by the first defendant did not affect the admissibility of the claim. The court did not decide to separate the proceedings against each defendant in this case but, if it had done so, the first defendant would not have been able to rely on the lack of validity arguments in its proceedings. However, because the proceedings were kept together, if the patent was declared invalid due to the claim of one defendant, then the infringement claim as a whole as against both defendants would lack its basis.
• EP 320 was held to be invalid due to added subject matter, while EP 698 was held to be valid and infringed.
• In relation to EP 698, the Düsseldorf LD assessed inventive step on a more patentee-friendly basis compared to the EPO, taking the view that the next step for the skilled person from the prior art would take them outside of the scope of the claim and as such the claim was inventive. The court found in relation to a first prior art document that “the skilled person has no reason to look for a solution to reduce possible tension between the two layers and possibly to provide a further (stress-relieving) layer for this purpose. For the design of the metal barrier layer with palladium, he already has a material at his disposal in which such tensions do not occur in the first place”
• As for EP 320, the Düsseldorf LD also appeared to depart from the EPO approach on added matter. It took a less literal approach that lent on the description of the patent to interpret the test (the granted claim must be directly and unambiguously derivable from the original application) in a more patentee-friendly way.

This analysis is based on a machine translation of a decision not available in English.

• This was an appeal by Audi relating to a decision from the Munich LD on Audi's separate preliminary objection (that the court lacked jurisdiction over damages in the UK and Northern Ireland and that the opt-out had not been validly withdrawn) and anapplication under Rule 361 RoP (summary judgment where the action is manifestly bound to fail – Audi argued NST lacked standing to sue and its statement of claim lacked sufficient substantiation). The Munich LD rejected the preliminary objections in part (leaving the issue of the UK and Northern Ireland damages to the main proceedings) but the Rule 361 request was rejected in full.
• The Court of Appeal rejected Audi's appeal against the Munich LD's decision on its preliminary objections. The Court of Appeal held that the Munich LD was entitled to leave the UK and Northern Ireland preliminary objection point to be decided in the main proceedings (Rule 20.2 RoP) and Audi did not provide reasons why, in deciding as it did, the Munich LD overstepped the boundaries of its discretion. As for the opt-outs, the court concluded that these had been validly withdrawn.
• Audi's appeal relating to its Rule 361 RoP requests failed too. Both of Audi's grounds of appeal here essentially boiled down to its contention that NST's statement of claim had not been sufficiently argued or substantiated. The Court of Appeal expressly said: "[e]ven though the UPC procedure is a front-loaded system, it is not required that the claimant envisage every possible line of defence and include all arguments, facts and evidence in, and submits it with, the statement of claim and that nothing could ever be added thereafter…". NST's approach of including one detailed claim chart and infringement report, while claiming infringement by a number of other embodiments, did not result in the claims relating to the other embodiments manifestly lacking any foundation in law and therefore the matter did not fall within the scope of Rule 361 RoP.

• Mala is the proprietor of a European Patent that only had effect in Germany. Nokia previously filed a revocation action against Mala in the German Federal Patent Court, which was dismissed and the patent was held to be valid. A day after receiving the German court's decision, Nokia filed a revocation action in the Paris CD and later also appealed the German national decision. Mala lodged a preliminary objection in the UPC revocation action, primarily requesting that the court decline jurisdiction for the revocation action and dismiss it as inadmissible or, alternatively, stay the proceedings until the final decision of the German court.
• The Paris CD rejected Mala's preliminary objection, finding that the scope and manner in which Articles 29 to 32 of the recast Brussels Regulation are determined by Articles 71a to 71d of the recast Brussels Regulation. It decided that on a literal application of Article 71c(2), Articles 29 to 32 do not apply because the German proceedings were brought before the beginning of the transitional period of the UPCA (Article 83).
• Mala appealed and the Court of Appeal set aside the first instance decision, granting Mala's request to stay the proceedings but still rejecting its main request to decline jurisdiction.
• The Court of Appeal decided that Article 71(c)(2) of the recast Brussels Regulation must be interpreted as meaning the lis pendens rules in Articles 29 to 32 apply where proceedings are pending before the UPC and a national court, even if the national proceedings were started before the transitional period began.
• The Court of Appeal held that Article 29 and Article 31 did not apply in this case as, following settled CJEU case law, the requirements of those provisions were not met, as the German and UPC cases involve different Nokia entities whose interests are not indissociable. However, Article 30 did apply, meaning it was at the discretion of the court to stay the UPC proceedings because there was a related action pending in a national court. The court considered that the parties in both actions were closely related, that the causes of action were almost identical and that the German proceedings were at an advanced stage.

• When considering an application for security for costs, the court must consider whether the financial position gives rise to a "legitimate and real concern" that the costs order may not be recoverable or enforceable.
• The burden of proof as to why the security is appropriate is on the defendant making the request. The claimant must then challenge the reasons and facts and argue why a security order would interfere with its right to an effective remedy.
• The relative financial position of the claimant in comparison to the defendant is not a criterion under Rule 158 RoP. This is especially the case where the limited level of funding provided to a special purpose patent enforcement entity is a deliberate business decision.
• The Court of Appeal held that the Court of First Instance has a margin of discretion when deciding on security for costs requests and therefore the review on appeal is limited. Nevertheless, the Munich LD's decision was set aside as it could not have reasonably come to the decision on the facts of the case. NST was ordered to provide adequate security for costs to Audi. The Munich LD had imposed too high a standard of proof on Audi by requiring it to provide "precise evidence" that NST is or would be insolvent by the time of a costs decision. On the basis of the evidence Audi provided, the Court of Appeal held that there was a "legitimate and real concern" that a possible costs order may not be recoverable.

• ITCiCo's patent was revoked for lack of inventive step in a decision by default.
• Under Rule 335 RoP, a decision may be given by default against a defendant where: (i) a request is submitted by the claimant; (ii) the defendant fails to take a step within the time limits in the RoP (or set by the court), or a party that is duly summoned by the court fails to appear at an oral hearing, or the time limit for the defence to the claim to be filed has elapsed and therefore it was established that the claim was served in sufficient time for the defendant to put in a defence; and (iii) the facts put forward by the claimant justify the remedy sought and the procedural conduct of the defendant does not preclude giving the decision.
• In this case, the grounds of invalidity raised by BMW were held to be "well founded" and a decision by default was awarded. In considering the decision, the Paris CD reminded that it is one of the aims of the UPCA and the legal framework of the UPC to provide expeditious decisions and that defendants are provided with appropriate tools to provide a justification for the default and to appeal the decision where it is unfavourable.

• Tandem filed a revocation action and sought a declaration of non-infringement in the Paris CD, relating to a patent held by Roche in the field of insulin infusion therapy. In response, Roche filed an infringement claim in the Hamburg LD.
• If invalidity proceedings between the same parties and relating to the same patent are already pending before the CD, it is at the discretion of the LD or RD before which the infringement proceedings are instituted whether to proceed in accordance with Article 33(3) UPCA and pursuant to Article 33(5) UPCA. In making its decision, the division responsible for the infringement actions should take into account how far the validity action has progressed in the CD (Rule 75.4 RoP).
• Rule 37.4 RoP states that infringement proceedings shall be stayed if there is a "high likelihood" that the patent will be invalidated by the final decision in the invalidity proceedings. Under Rule 295(m) RoP, the court may stay the proceedings if the proper administration of justice requires it.
• In this instance, Tandem's request to stay the infringement action was dismissed as Roche's interest in continuing the proceedings outweighed Tandem's interest in a stay.