Short Summary
ICPillar LLC appealed a Court of First Instance order requiring it to provide security for costs (EUR 400,000) in its patent infringement action against ARM entities before the Paris Local Division. The Court of Appeal rejected the appeal, holding that the Insurance Policy submitted for the first time on appeal would be disregarded under R.222.2 RoP, and that a bank guarantee from a US-licensed bank did not constitute adequate security under R.158 RoP.
Detailed Summary
On 22 December 2023, ICPillar LLC (Houston, Texas, USA) brought a patent infringement action against multiple ARM entities based on European patent EP 3 00 0239 before the Paris Local Division of the Unified Patent Court. On 26 April 2024, ARM filed an application under R.158.1 RoP requesting the Court of First Instance to order ICPillar to provide adequate security for legal costs. The Court of First Instance granted the application, ordering ICPillar to provide a bank guarantee from a bank licensed to operate in the EU, set at EUR 400,000. ICPillar was granted leave to appeal on 30 May 2024.
In its appeal, ICPillar made two principal arguments. First, it argued that an Insurance Policy it had taken out—which included an Anti-Avoidance Endorsement making it non-voidable and non-cancellable—provided security equivalent to a cash deposit or bank guarantee and should exempt it from the security requirement. ICPillar submitted the Insurance Policy for the first time in the appeal proceedings, along with a R.262A RoP application for confidentiality protection, which was rejected on 23 July 2024. Second, as an auxiliary request, ICPillar argued that if security were required, it should be permitted to provide a bank guarantee from a US-licensed bank, relying on the non-discrimination principle under Article 2.1 of the Paris Convention.
ARM opposed the appeal, arguing that the Insurance Policy was submitted too late and that it was disadvantaged by the late production, particularly because the policy was initially submitted in heavily redacted form and was subject to English law requiring specialist knowledge to evaluate within short time limits.
The Court of Appeal, exercising its discretion under R.222.2 RoP, decided to disregard the Insurance Policy. The Court reasoned that under R.172.1 RoP, there is a duty to provide evidence already available to a party, and ICPillar should have submitted the Insurance Policy during the first instance proceedings. The Court noted that while it had discretionary power under R.172.2 RoP to request production of evidence, it was not obliged to do so. Weighing the relevant circumstances under R.222.2(a)-(c) RoP—including the stage of the proceedings, the relevance of the evidence, and the disadvantage to ARM—the Court found the balance tipped against admitting the late evidence.
On the substantive question, the Court of Appeal agreed with the Court of First Instance that ICPillar had not disputed the risk that it lacked financial resources to pay ARM's costs if unsuccessful, justifying the security order under R.158 RoP. Regarding the auxiliary request, the Court held that a bank guarantee from a US-licensed bank did not provide adequate security under R.158 RoP, and that this conclusion was based on substantive grounds rather than nationality, so it did not violate any non-discrimination principle.
The Court of Appeal rejected the appeal and denied ARM's request for a cost decision, as the order was not a final order concluding the action.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in ICPillar LLC vs SVF Holdco, Arm France SAS, Arm lreland Limited, Arm Poland Sp. z.o.o, Simulity Labs Limited, Arm Germany d.o.o, Arm Germany GmbH, Apical Limited, Arm Sweden AB, ARM Limited is valuable context for structuring arguments or assessing risk in similar proceedings.
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