Photon Wave v Seoul Viosys (CoA, 15 October 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 15 October 2024 (CoA_PC 01/2024), given in French on the written procedure, the Court of Appeal declared inadmissible the appeal brought by Photon Wave, an intervener at first instance, against procedural order ORD_41423/2024 issued on 24 July 2024 by the Paris Local Division in Seoul Viosys’s infringement action (UPC_CFI_440/2023, EP 3 404 726). A statement at the end of the order that it may be appealed under Rule 220.2 RoP does not amount to leave to appeal. The order restates a simple formal requirement whose disregard closes the route of an immediate appeal.

Question

Is an appeal against a procedural order admissible where the order merely states that it may be appealed under Rule 220.2 RoP, without expressly granting leave to appeal?

Decision

Orders other than those referred to in Rules 220.1 and 97.5 RoP may only be appealed together with the decision on the merits or with leave of the Court of First Instance (Article 73 UPCA, paragraph 5). Leave must be express and cannot be presumed, without prejudice to a request for discretionary review under Rule 220.3 RoP (paragraph 6). The general statement at the end of the order, which follows the UPC template, is merely informative. Leave would have been worded along the lines of “leave to appeal is granted” (paragraphs 7 to 10). Without leave, the appeal is inadmissible, as the Court held in Abbott v Dexcom (paragraph 11). As a formal issue, the Court ruled without a hearing (Rule 229 RoP, paragraph 12) and without addressing the other requests (paragraph 13).

Key points for practice

• Leave to appeal under Rule 220.2 RoP must be granted expressly in the order. A note on available remedies is no substitute (paragraphs 7 to 9).
• Practical point: absent express leave, a party should seek discretionary review within the Rule 220.3 time limit or wait to appeal the decision on the merits.

Provisions applied

Agreement on a Unified Patent Court

Art. 73

Rules of Procedure

Rules 97.5, 220.1, 220.2, 220.3 and 229

Case law cited

Abbott v Dexcom, Court of Appeal, 14 March 2024, UPC_CoA_5/2024

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.