C-Kore Systems v Novawell (UPC_CFI_397/2023)
Decision date:
14 November 2023
Osborne Clarke summary
- C-Kore is the proprietor of a patent relating to subsea apparatus and the testing of it, which it acquired in 2013 from its former parent company. The patent was exploited by C-Kore through the use and marketing of its "cable monitor" product.
- C-Kore brought an ex parte application for provisional measures (preserving evidence) against Novawell, requesting: (i) a detailed description of the alleged infringing product; (ii) physical seizure of the product and documents; (iii) preservation and disclosure of digital media; and (iv) a written report carried out by a court appointed individual.
- The Paris LD concluded that the conditions set out in Rule 192.2 RoP were met.
- The court explained that the validity of the patent was sufficiently certain because it was in force in France, Germany, Italy, the Netherlands, Denmark and Norway, and that no opposition was pending before the EPO.
- The court accepted pictures extracted from Novawell's website as evidence to prove that the attacked product had the necessary features to satisfy C-Kore's infringement claim at this stage.
- According to Rule 194.2 RoP, the court shall take into account the urgency and the reasons to grant an ex parte order. The court noted the relevance of the competitive market at hand. The court further noted that, having previously been a client of C-Kore, Novawell was now a direct competitor. C-Kore took less than three months from becoming aware of the existence of the allegedly infringing product to filing this application (having sent pre-action letters during this period), which the Paris LD found to be a reasonable delay in this case. This was especially so because C-Kore asked for a "standard procedure" and not an "urgent procedure". The court also held that there was a risk that evidence could be easily removed if Novawell was informed or was heard before the measures were carried out. Therefore, it was justified in making the order on an ex parte basis.
Issue
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