Philips France Commercial v Thales (Paris Court of Appeal, RG 22/16659, 2023)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The International Commercial Chamber of the Paris Court of Appeal upholds the refusal to set aside an ex parte order which, under Article 145 of the Code of Civil Procedure, had authorised the seizure of documents at the premises of Philips France Commercial. Thales, in FRAND licensing negotiations since 2015 over patents declared essential to ETSI, sought to show that the Philips group had used US infringement actions to force its terms on it, in breach of EU competition law (§ 6). Pre-action evidence measures may thus be used to prepare a claim based on an essential patent holder’s conduct in negotiations.

Question

Should the evidence measure ordered without notice be set aside or varied?

Decision

The court recalls that the appeal is confined to the subject matter of the set-aside proceedings (§§ 19 and 20). The risk that volatile evidence, emails held by an employee of the French company, would disappear justified proceeding without notice, since the US preservation obligations did not extend to that company (§§ 30 to 33). Legitimate interest is assessed by reference to the usefulness of the measure, without proof that the claim is well founded (§§ 52 to 56), and the measure is proportionate, with specific keywords and a period running from 11 December 2015 (§§ 67 to 72). Limitation is a matter for the trial judge (§§ 73 and 74). Legal professional privilege under Article 66-5 of the Law of 31 December 1971 is protected by a sorting exercise, but the US work product doctrine does not apply in France and does not cover an in-house lawyer who is not an avocat (§§ 75 to 78). Philips’s alternative requests and Thales’s request to vary the expert’s brief are dismissed (§§ 87 to 90). Philips France Commercial is ordered to pay EUR 20,000 in costs under Article 700.

Key points for practice

• Practical point: a prospective licensee that suspects abusive conduct in FRAND negotiations may obtain an ex parte seizure of evidence in France, framed by an expert sorting exercise that protects only privileged communications with an avocat.

Provisions applied

National law

Arts 145, 493, 496, 497, 561 and 700 of the French Code of Civil Procedure; Art. 66-5 of Law No 71-1130 of 31 December 1971

Case law cited

Cour de cassation, 26 January 2022, No 17-87.359

Prepared by Dhenne Avocats from the text of the decision (Paris Court of Appeal website, cours-appel.justice.fr), consulted on 11 October 2026. Only the official text is authoritative.