LD Paris, May 29, 2026, decision on the merits, UPC_CFI_130/2025

One defendant requested that an expert report submitted to the Judge Rapporteur at the end of seizure measures and the inspection of the defendant’s premises be declared null and void. They argued that there had been a preparatory meeting of the expert with the claimant, which seemed to have influenced the expert in the claimant’s favour.

At the outset, the LD finds that it has jurisdiction to decide this issue.

However, the LD points out that, for efficiency reasons, seizure measures have to be prepared in advance, which includes getting in touch with the claimant’s representatives (being the only party in the present ex parte procedure). In the LD’s opinion, this does not cast doubt on the expert’s impartiality. In any case, the expert had, according to the court, ample opportunity to take note of the defendant’s arguments when reading the application for the order to preserve evidence.

In the case at hand, a claimed feature was defined by its function and the defendant argued that the relevant/corresponding feature in the allegedly infringing product had a different function. In this context, the LD observed that it could not be a priori excluded that said feature fulfils an additional function in the allegedly infringing product. However, the burden of proof rests upon the claimant.

Notwithstanding a lack of evidence concerning an additional function, the LD emphasized that the claimant had previously based its validity arguments before the Central Division on an alleged lack of prior-art disclosure concerning the function defining the claimed feature. Conversely, the claimant cannot argue – without supporting evidence – that the said function is necessarily implied by the presence of a certain feature in the allegedly infringing product. In particular, the claimant had presented an argument that a prior-art document taught a specific function, thus excluding the claimed functionality.

The defendant argued that the present ex parte seizure had an abusive character and had caused damages for which they sought indemnification. While the LD accepted that the allegation of an abuse of rights was, in principle, a legitimate defense in an infringement action, it noted that there was no evidence of abuse in the present case since, moreover, the seizure was confirmed in appeal by the Court of Appeal.