BYD v BMS Innovations (CFI, 9 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 9 September 2026 (UPC_CFI_2437/2026), the judge-rapporteur of the Paris Local Division rejected BMS Innovations’ application to declare inadmissible, or to stay, the action for a declaration of non-infringement brought by six BYD companies in respect of EP 2 937 706, alongside the infringement action (UPC_CFI_2070/2025) and the counterclaim for revocation (UPC_CFI_1744/2026). BYD’s prior letter met the requirements of Rule 61.1 RoP, and the action, available under Rule 77 RoP, was not an abuse. The order clarifies what the prior application for an acknowledgment of non-infringement must contain.

Question

Is an action for a declaration of non-infringement inadmissible under Rules 61, 361 and 362 RoP where the prior letter is said to lack particulars and the defendant is already pursuing an infringement action?

Decision

The letter of 18 May 2026 described the battery design, identified the features said to be missing, in particular feature 1.8, and the acts concerned. BMS Innovations, which asked for no further technical information, could not claim it lacked the necessary information (paragraphs 12 to 15). Rule 361 RoP is reserved for clear-cut cases and the action was neither manifestly inadmissible nor devoid of legal foundation (paragraphs 16 to 18). There was no absolute bar under Rule 362 RoP (paragraph 19). Bringing an action for a declaration of non-infringement alongside a counterclaim for revocation is the exercise of a right provided for in Rule 77 RoP (paragraph 20). The stay was refused (paragraph 22). Costs were reserved to the main proceedings.

Key points for practice

• A letter describing the product, the disputed features and the acts concerned satisfies Rule 61.1 RoP. A patentee who considers it insufficient should ask for further particulars.
• Practical point: a defendant to an infringement action may bring a parallel action for a declaration of non-infringement without abuse.

Provisions applied

Rules of Procedure

Rules 9.1, 61.1, 77, 333, 361 and 362

Case law cited

HL Display v Black Sheep Retail, The Hague Local Division, 10 October 2025, Volkswagen v NST, Court of Appeal, 18 September 2024, Microsoft v Suinno, Court of Appeal, Headwater v Motorola, Munich Local Division, 11 September 2024, Shenzhen Transsion v Ericsson, Lisbon Local Division, 26 May 2026.

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.