Short Summary
Sun Patent Trust sought suspensive effect under Rule 223 RoP for its appeal against a Paris Local Division order that granted three Vivo employees access to highly confidential information (HCI) in an infringement action concerning EP 3 407 524. The Court of Appeal held the application admissible but not well founded, finding that Sun Patent failed to establish the appeal would become devoid of purpose if the HCI were disclosed to the designated employees, given the existing confidentiality obligations and penalty provisions in the impugned order.
Detailed Summary
This procedural order concerns an application for suspensive effect (Rule 223 RoP) filed by Sun Patent Trust ('SUN PATENT') in proceedings against Vivo Mobile Communication Co., Ltd., Vivo Tech GmbH, and Vivo Mobile Communication Iberia SL (jointly 'VIVO') regarding European Patent EP 3 407 524.
On 18 April 2025, SUN PATENT filed an infringement action against VIVO before the Paris Local Division, alleging that the terms of a licence offered by SUN PATENT to VIVO were fair, reasonable and non-discriminatory (FRAND). On the same day, SUN PATENT filed an application for protection of confidential information under Rule 262A RoP, seeking to restrict access to highly confidential information (HCI) to certain persons, including VIVO's legal representatives and up to three VIVO employees. SUN PATENT subsequently limited its request to an 'External Eyes Only' regime, seeking to exclude VIVO employees entirely.
On 31 July 2025, the Paris Local Division issued the impugned order (ORD_33183/2025), restricting access to confidential and highly confidential information to specific persons, including three VIVO employees. SUN PATENT was granted leave to appeal on 11 August 2025. An initial application for suspensive effect was rejected as inadmissible on 15 August 2025 due to the absence of a Statement of Appeal and non-payment of the appeal fee. SUN PATENT then lodged its Statement of Appeal on 16 August 2025 and filed the present application for suspensive effect on 17 August 2025.
SUN PATENT requested that the appeal have suspensive effect to the extent that the impugned order granted access to HCI to three VIVO employees, until issuance of a final decision by the Court of Appeal. SUN PATENT argued that the appeal would become pointless if the HCI were disclosed to VIVO's designated employees and that suspensive effect was necessary to safeguard its rights to be heard and to a fair trial.
VIVO requested rejection of the application as inadmissible under Rule 223.5 RoP (which provides no suspensive effect for appeals of orders pursuant to Rule 220.2 RoP), or alternatively as unfounded, arguing that enforcement of the impugned order did not raise a risk of manifestly disproportionate and irreparable consequences.
The Court of Appeal held the application admissible but not well founded. While Rule 223.5 RoP generally precludes suspensive effect for orders under Rule 220.2 RoP, the Court held this does not prevent an application for suspensive effect from being lodged and granted based on the prevalence of Article 74 UPCA. However, an exception to the principle that an appeal has no suspensive effect applies only if the appealed order is manifestly erroneous or if the appeal becomes devoid of purpose.
The Court found that SUN PATENT failed to establish the appeal would become devoid of purpose. The Court reasoned that the issue concerned not only access to HCI but also the conditions and extent of its use. Under the impugned order, all persons authorised to access HCI, including the three VIVO employees, were bound by a duty not to use or disclose the information for any other purpose than the court proceedings, with culpable breaches sanctionable by penalty payments. SUN PATENT did not demonstrate, based on previous behaviour, any risk that the three employees would breach this duty. Furthermore, if the Court of Appeal were to revoke the impugned order in the pending appeal, the employees would no longer have access to or be permitted to use the unredacted submissions and exhibits containing HCI. The Court also noted that SUN PATENT had not shown that its interests in excluding the three employees from the confidentiality club pending the appeal outweighed VIVO's interests in granting them immediate access, given the current deadlines for VIVO to file written submissions and the relevance of the HCI to those submissions.
The Court of Appeal therefore rejected the application for suspensive effect.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Sun Patent Trust vs Vivo Mobile Communication Co., Ltd., Vivo Tech GmbH, Vivo Mobile Communication Iberia SL is valuable context for structuring arguments or assessing risk in similar proceedings.
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