Suinno v Microsoft (UPC_CoA_563/2024)
Decision date:
11 February 2025
Osborne Clarke summary
- Suinno is the proprietor of a patent relating to a method and means for browsing by walking. It filed an infringement claim against Microsoft at the Paris CD. Suinno also filed an application under Article 53 and Article 262A UPCA and Rule 262 RoP requesting that certain documents be kept confidential from both the public and Microsoft.
- The Paris CD panel declared Suinno's application under Article 262A UPCA inadmissible and ordered the documents to be disclosed to certain identified persons and granted leave to appeal. The Paris CD's reasoning was that Suinno's representative, who was also its managing director and main shareholder, had extensive administrative and financial powers within the body he represented and therefore he could not be considered independent for the purposes of valid representation before the UPC.
- Suinno appealed but this was rejected by the Court of Appeal, who agreed that Suinno had not been validly represented by a representative under the meaning of Article 48(1), (2) and (5) UPCA. Representation must be by lawyers authorised to practice before a court of a contracting member state or by an EU patent attorney. If the party is a natural person, they cannot represent themselves, regardless of whether they are qualified to act as a UPC representative in accordance with Article 48(1) and (2) UPCA.
- It also follows that someone who holds a high-level management or administrative position or who holds a significant amount of shares in a legal person may not serve as its representative before the UPC. This is because representatives enjoy rights and immunities necessary for independent exercise of their duties, including the privilege from disclosure in proceedings before the UPC in respect of communications between a representative and the party or any other person under Article 48(5) UPCA and the RoP.
- However, the mere fact that a qualified representative under Article 48(1) or (2) UPCA is employed by the party they represent does not undermine the duties of the representative. A representative who is employed by the party they act for must act towards the court as an independent counsellor by serving the interests of their client in an unbiased manner in accordance with the Code of Conduct for Representatives.
Issue
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