Short Summary
This procedural order concerned an appeal filed by Photon Wave Co., Ltd. against order ORD_41423/2024 of the Paris Local Division, which had been issued in proceedings involving European Patent EP 3 404 726. Seoul Viosys Co., Ltd. raised an objection of inadmissibility, arguing that the appeal had not been expressly authorized by the Court of First Instance as required under Article 73 of the Agreement on a Unified Patent Court and Rule 220.2 of the Rules of Procedure. The Court of Appeal held that the mere general reference to Rule 220.2 in the operative part of the contested order did not constitute the express authorization required for an appeal, and that such authorization cannot be presumed.
Detailed Summary
This procedural order was issued by the Court of Appeal in case CoA_PC 01/2024 (paper procedure), concerning an appeal against order ORD_41423/2024 rendered by the Paris Local Division of the Court of First Instance on July 24, 2024, in the main proceedings ACT_588685/2023 (UPC_CFI_440/2023). The patent in dispute was European Patent EP 3 404 726. The appellant, Photon Wave Co., Ltd., was a Korean company that had intervened in the proceedings before the Court of First Instance. The respondent, Seoul Viosys Co., Ltd., also a Korean company, was the plaintiff in the first instance proceedings. The panel was composed of Klaus Grabinski (President of the Court of Appeal), Emanuela Germano (judge), and Emmanuel Gougé (judge-rapporteur). The language of the proceedings was French.
On August 2, 2024, Photon Wave filed an appeal against the procedural order ORD_41423/2024. Seoul Viosys submitted its defense brief on September 5, 2024, and raised an objection of inadmissibility, contending that the appeal had not been authorized by the Court of First Instance as required by the applicable procedural rules. By order of the judge-rapporteur dated September 16, 2024, Photon Wave was authorized to submit written observations on the inadmissibility objection. Photon Wave responded on September 24, 2024, addressing the inadmissibility issue raised by Seoul Viosys and providing additional observations on matters not solicited by the Court. The central legal question concerned the interpretation of Article 73 of the Agreement on a Unified Patent Court and Rule 220.2 of the Rules of Procedure, which govern when orders may be appealed. Under these provisions, orders other than those covered by Rules 220.1 and 97.5 may be appealed either together with the appeal of the final decision, or with the authorization of the Court. The dispute centered on whether the Court of First Instance had expressly granted such authorization in the contested order.
& Analysis
The Court of Appeal reasoned that, under Rule 220.2, the authorization to appeal an order—apart from the case of an appeal lodged together with an appeal of the final decision—must be expressly granted by the Court and cannot be presumed. In the absence of express authorization, leave to appeal the order is not granted, although this does not preclude a possible request for discretionary review under Rule 220.3 or the possibility of appealing the order together with an appeal of the decision to be issued. The Court observed that, in the present case, the Court of First Instance had merely included a general statement at the end of the operative part of the contested order, indicating that the order "is subject to appeal under the conditions provided by the provisions of R. 220.2 RdP." The Court of Appeal found that this amounted only to a general informational reference to the applicable rule and did not constitute an express authorization to appeal as required by Rule 220.2.
Final Order & Ruling
Based on this reasoning, the Court of Appeal addressed the inadmissibility objection raised by Seoul Viosys, holding that the mere general reference to Rule 220.2 in the operative part of the contested order does not constitute the express authorization required for an appeal under Rule 220.2 of the Rules of Procedure. The appeal was therefore subject to scrutiny on this procedural requirement, with the Court emphasizing that leave to appeal must be expressly granted and cannot be presumed from a general reference to the applicable rule.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Photon Wave Co., Ltd vs Seoul Viosys Co., Ltd. is valuable context for structuring arguments or assessing risk in similar proceedings.
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