Photon Wave Co., Ltd v. Seoul Viosys Co., Ltd.

This procedural order concerns an appeal (CoA_PC 01/2024) filed by Photon Wave Co., Ltd against order ORD_41423/2024 rendered on July 24, 2024 by the Paris Local Division of the Court of First Instance in main proceedings ACT_588685/2023 (UPC_CFI_440/2023). The patent in dispute is EP 3 404 726. Photon Wave, a Korean company, was the intervenor in the first instance proceedings, while Seoul Viosys Co., Ltd., also a Korean company, was the claimant.

On August 2, 2024, Photon Wave filed its notice of appeal. On September 5, 2024, Seoul Viosys submitted its response and raised an objection of inadmissibility, arguing that the appeal had not been authorized by the Court of First Instance as required by Rule 220.2 RoP. By order of the judge-rapporteur dated September 16, 2024, Photon Wave was authorized to submit written observations on this inadmissibility objection, to which it responded on September 24, 2024.

The Court of Appeal examined the admissibility of the appeal under Article 73 of the Agreement on a Unified Patent Court (UPCA) and Rule 220.2 of the Rules of Procedure. It held that, outside the case of an appeal filed together with an appeal of the final decision, the authorization to appeal under Rule 220.2 must be expressly granted by the Court and cannot be presumed. In the absence of such express authorization, the appeal is inadmissible, without prejudice to a possible discretionary review request under Rule 220.3 RoP or the possibility of appealing the order together with an appeal of the final decision.

In the present case, the Court of First Instance had merely stated, using general terms at the end of the operative part of the contested order, that the order 'is subject to appeal under the conditions provided by the provisions of R. 220.2 RoP.' The Court of Appeal found that this amounted only to an informative reference to the applicable procedural rules and did not constitute an express grant of authorization to appeal. If the Court had intended to grant such authorization, it would have used explicit language such as 'the authorization to appeal is granted,' as contemplated by Article 73 UPCA. The Court of Appeal further noted that the contested order was consistent with the standard template for orders available on the Unified Patent Court's website, which contains a general formula regarding the conditions under which an appeal may be filed.

The Court of Appeal rejected Photon Wave's contention that the appeal had been 'admitted,' finding that Photon Wave had failed to justify this assertion. The Court also noted that this conclusion was consistent with its prior order of March 14, 2024 in the case of Abbott v. Dexcom (UPC_CoA_5/2024, PR_APL_189/2024). Finally, the Court held that, as this was a formal matter falling within the examination under Rule 229 RoP, and after having allowed both parties to submit written observations, there was no need to hold an oral hearing.

The Court of Appeal therefore declared the appeal inadmissible, without needing to rule on the other requests.