VALINEA ENERGIE v TIRU (CoA, 15 July 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 15 July 2025 (PC-CoA-002/2025), the Court of Appeal dismissed VALINEA Energie’s appeal against the Paris Local Division’s order of 24 March 2025 refusing to set aside evidence preservation and inspection measures granted to TIRU without hearing the defendant, on the basis of EP 3 178 578 (waste incineration plant).

The order matters on two counts. The Court draws a clear line between urgency for evidence preservation (Rule 194.2(a)) and urgency for provisional measures (Rule 209.2(b)): the undue delay test in Rule 211.4 applies only to the latter. It also defines the ex parte applicant’s duty of candour: as a rule, neither validity nor prior art needs to be addressed at this stage.

Facts and procedure

TIRU, proprietor of EP 3 178 578 in force in France, Poland and the United Kingdom, applied to the Paris Local Division on 17 December 2024 for evidence preservation and inspection orders concerning an incineration kiln operated in Montbéliard by VALINEA and built by MAGUIN (paragraph 4). The orders, granted on 23 December 2024 without hearing the defendants, were executed simultaneously at both sites on 14 January 2025 (paragraphs 5 and 6). TIRU brought infringement actions on 18 February 2025 (paragraph 7).

On 12 February 2025 VALINEA applied for the measures to be set aside or, in the alternative, revised, disputing urgency, the risk of evidence being lost and the applicant’s candour (paragraph 8). The Local Division dismissed that request on 24 March 2025 (paragraph 9). VALINEA appealed, also seeking the return of the items seized and of the sums deposited as security (paragraphs 10 and 11).

The applicable law

The Court refers to Art. 60(1) and (5) UPCA, Art. 7 of Directive 2004/48 and Rules 192 to 197 RoP, under which measures may be ordered without hearing the defendant, in particular where there is urgency or a demonstrable risk of evidence being destroyed. The court weighs urgency, whether the reasons for not hearing the defendant appear well founded and the probability of destruction (Rule 194.2). The appeal is admissible under Rule 220.1(c) (paragraphs 15 to 17). The Court of Appeal reviews only whether the first instance judge exceeded the limits of their discretion or erred in law (paragraph 26).

Question

Should the measures ordered without hearing VALINEA have been set aside for lack of urgency, absence of a risk of evidence being lost or a breach by TIRU of its duty of candour?

Decision

The appeal is dismissed. Urgency was established: the kiln’s first trials were planned from 15 January 2025, and once in operation an internal inspection would have required a shutdown of several days, which was unlikely in the short term (paragraphs 30 to 32), the technical documentation had to be secured at MAGUIN at the same time (paragraph 33). The roughly two-month gap between the bailiff’s record of the YouTube video of 11 October 2024 and the application was not excessive, since the delay test for provisional measures does not apply (paragraphs 34 to 36).

The risk of loss is assessed by probability or demonstrable risk, not certainty, and the public service concession did not rule it out (paragraphs 37 to 39). The duty of candour covers important facts bearing on urgency, the grounds for not hearing the defendant and the risk of destruction (paragraph 41). Validity is not examined at this stage unless the presumption of validity is manifestly open to challenge, for instance after a parallel opposition or revocation decision (paragraphs 42 and 43). Neither FR 2 350 136, cited in the description, nor the 1987 « Laurent Bouillet » kiln had to be disclosed (paragraphs 44 to 48). The Court made no ruling on costs, since the order does not end the proceedings (paragraph 50).

Key points for practice

• A two-month gap between discovering the triggering evidence and applying does not defeat urgency for an evidence preservation order (paragraphs 34 to 36).
• The risk of loss may lie in the object becoming practically unavailable for inspection, such as equipment about to enter service (paragraphs 38 and 39).
• An ex parte applicant need not anticipate invalidity arguments or prior art, absent a parallel decision or manifest relevance (paragraphs 42 to 48).
• Practical point: a challenge to an evidence preservation order is not the place to argue validity, those arguments belong before the merits or provisional measures judge.

Provisions applied

Agreement on a Unified Patent Court

Art. 60(1) and (5)

Rules of Procedure

Rules 192, 194, 196, 197, 209.2(b), 211.4 and 220.1(c)

Directive 2004/48/EC

Art. 7

Related decisions

• TIRU v VALINEA ENERGIE, 23 December 2024, evidence preservation order granted without hearing VALINEA.
• TIRU v VALINEA ENERGIE, 24 March 2025, Paris Local Division order refusing to set the measures aside, under appeal.
• MAGUIN v TIRU, 15 July 2025, parallel order dismissing the kiln manufacturer’s appeal.

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.