Seoul Viosys v Emporia (UPC_CFI_258/2025)
Decision date:
01 September 2025
Osborne Clarke summary
- This was a decision from the Paris CD on a preliminary objection raised by Seoul Viosys (SV).
- The respondent, Emporia, had filed a revocation action in the Paris CD against SV's patent relating to wafer level integrated chip on PCB (WICOP) and LED manufacturing.
- SV filed a preliminary objection, requesting that the action be rejected under Article 33(4) UPCA on the basis that there were already proceedings "between the same parties relating to the same patent" in another division.
- SV alleged that Emporia was merely a "straw company" of the defendant in its parallel infringement proceedings in the Düsseldorf LD (ex-pert klein GmbH). In that case, the court had rejected ex-pert klein's counterclaim for revocation.
- SV pointed to the facts that Emporia supplied the allegedly infringing products to ex-pert klein, which acted as its distributor, and that the parties were represented by the same lawyers, relied on the same documents and arguments and had a "concerted strategy". SV argued that it was "an impermissible circumvention of the UPC's jurisdictional framework, allowing a “straw” party to have a “second chance” at invalidating the patent at issue."
- The Paris CD rejected the argument.
- It considered that the "straw company" theory has a legal basis in EU law and may be relevant for the purpose of assessing the "same parties" under Article 33(4) UPCA. However, there was no proof that Emporia "was created or used as a nominee for ex-pert klein GmbH to carry out specific initiatives concerning exclusively the latter’s business activities". The fact that the companies had "substantially overlapping defence strategies" did not mean that they were not autonomous entities, and it was "entirely reasonable" for a supplier and distributor to coordinate their defensive strategies.
- The court reiterated that the UPC "framework does not exclude that a patent may be attacked by different subjects, even if linked by organizational ties or commercial relationships, and by the means of different claims, even if structured in the same grounds of invalidity", citing the Paris CD's previous decision in Meril Italy v Edwards Lifesciences.
Issue
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