Short Summary
This case concerns a review of an ex parte order for preserving evidence (saisie) issued by the Paris Local Division. C-Kore Systems Limited, proprietor of European patent EP 2 265 793 relating to subsea testing apparatus, obtained an ex parte saisie order against Novawell, a former customer alleged to have developed a competing product called 'SICOM'. Novawell sought to have the order revoked, but the Court dismissed the review application in its entirety, finding the request admissible, the evidence sufficient, and the measures compliant with both UPC rules and French national law.
Detailed Summary
C-Kore Systems Limited is the proprietor of European patent EP 2 265 793, granted on 1 August 2012 and acquired in 2013 from its former parent company Zethetics Ltd. The patent, comprising 18 claims, relates to subsea apparatus and testing of such apparatus. C-Kore exploits the patent through its 'Cable Monitor' product, a compact automated tool for testing subsea electrical assets leased to contractors worldwide. C-Kore alleged that Novawell, a former customer, had developed a competing product called 'SICOM' that reproduced the features of the patent claims.
On 2 November 2023, C-Kore filed an application for preserving evidence against Novawell before the commencement of proceedings on the merits. An ex parte order allowing the saisie request was issued on 14 November 2023. The saisie measures were carried out on 5 December 2023 at Novawell's premises in Montpellier, France, by an expert appointed by the Court and assisted by a bailiff. The expert's written report was presented to the Court on 14 December 2023. Novawell lodged a request to review the saisie order on 5 January 2024, and an oral hearing was held on 15 February 2024 before the full panel of the Paris Local Division.
Novawell raised several arguments seeking revocation of the order: (1) the review request was inadmissible because it was filed outside the 30-day time limit under R. 197.3 RoP; (2) C-Kore failed to provide reasonably available evidence under Art. 60 UPCA, including the date of Novawell's commercial brochure and alleged lack of loyalty in not disclosing awareness of Novawell's competitor activity since 2017; (3) there was no justified risk of evidence destruction; (4) the patent lacked novelty and inventiveness; (5) the measures should have been requested under R. 199 RoP rather than R. 196 RoP; and (6) the saisie carried out by an expert assisted by a bailiff did not comply with French national law, specifically Art. L. 615-5 of the French Intellectual Property Code, and was contrary to French public policy on the rights of the defence.
The Court rejected all of Novawell's arguments. On admissibility, the Court held that the 30-day time limit under R. 197.3 RoP begins with the service by the bailiff of the 'procès-verbal de saisie' at the end of the operations, which is the procedural act that closes the seizure operations and informs the defendant of the content of the notice. The Court also rejected Novawell's request for an extension of time under R. 9 RoP due to alleged technical issues with CMS, finding that Novawell failed to provide sufficient evidence of such issues as required by Art. 54 UPCA.
On the merits, the Court found that C-Kore had provided sufficient available reasonable evidence of the alleged infringement, that there was no need to examine the validity of the patent at this early stage, and that the conditions for an ex parte order were met. The Court distinguished between a request for preserving evidence (R. 196 RoP) and a request for inspection (R. 199 RoP), holding that they are two different and distinct procedures and that there is no need to combine them, even though the first requires the right to enter a private place.
Regarding compliance with French national law, the Court held that a saisie carried out by an expert assisted by a bailiff is not contrary to French law and is in conformity with R. 196.5 RoP. The Court noted that under UPC rules, the saisie expert is appointed by the Court and must be a person of competence, independence, and impartiality, which constitutes a guarantee to protect the rights of the defence. The presence of a bailiff (Commissaire de justice) on French territory provides additional guarantees, as the bailiff has a strictly regulated function and the bailiff's minute has the highest probative value. The Court found no need for a preliminary reference to the European Court of Justice on this point.
The Court therefore dismissed Novawell's application for review in its entirety, confirming the order for preservation of evidence issued on 14 November 2023. The order was delivered on 1 March 2024, with an appeal period of 15 days from service under Art. 73(2)(a), 60 UPCA, R. 220.1(c), 224.2(b) RoP.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Paris (FR) Local Division. Understanding the court's reasoning in C-Kore Systems Limited vs Novawell is valuable context for structuring arguments or assessing risk in similar proceedings.
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