WhiteWater West Industries v American Wave Machines (CFI, 12 January 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By a default decision of 12 January 2026 (UPC_CFI_350/2025), the Paris Central Division, at the request of WhiteWater West Industries, partially revoked American Wave Machines’ EP 2 728 089 to the extent of claim 1. The claim covers an aquatic amusement apparatus whose wave-generating chambers are actuated in sequence by a mobile controller with a graphical user interface and a wave creation module. Although the defendant did not respond, the division reviewed the merits of the claim and found a lack of inventive step over D1 combined with D3.

The decision is useful because it shows that a default decision is no substitute for a review of the merits: the division rejected several points put forward by the claimant before upholding a single ground, and questioned the technical contribution of a software module.

Facts and procedure

WhiteWater West Industries brought a revocation action against claim 1 of EP 2 728 089 (sequenced chamber wave generator) on 22 April 2025. The statement for revocation was served on 8 May 2025 under the Hague Service Convention (paragraphs 4 and 9). The time limit for the defence expired on 8 July 2025 with no defence, extension request or request for re-establishment (paragraph 5). On 10 July 2025 the claimant applied for a decision by default and costs (paragraph 6).

The applicable law

Under Rule 355, a decision by default may be given where the facts put forward by the claimant justify the remedy sought and the defendant’s conduct does not preclude it (paragraph 7). Whether to issue one is within the court’s discretion (paragraph 10). Inventive step is assessed under the Court of Appeal’s approach (paragraph 54).

Question

Are the conditions for a decision by default met, and do the facts put forward by the claimant justify revocation of claim 1 for lack of inventive step?

Decision

The division considered only the facts needed to justify the remedy and did not have to rule on every ground (paragraph 11). It defined the skilled person as a mechanical engineer specialising in wave generators (paragraph 18) and held that the claimant had not sufficiently proven that the Macintosh 128k formed part of that person’s common general knowledge (paragraph 20). It rejected the claimant’s expert’s reading of « prevent » as contrary to the purpose of the patent (paragraph 28) and held that the controller is a functional entity that may be split between a fixed and a mobile component (paragraph 34).

D1 (US 4,558,474), a pneumatic wave generator, discloses neither the claimed sequencing nor the mobile controller with a graphical user interface, so novelty is established (paragraphs 51 to 53). The objective problem lies in customising wave characteristics, since creating rideable waves was already known (paragraph 55), and only interface features contributing to a technical effect are taken into account (paragraph 60). D3 (WO 2009/058031) gives a clear pointer to use a software interface for specifying the wave profile (paragraph 65), and whether adding a wave creation module makes a technical contribution is « highly questionable » (paragraph 72). Claim 1 is obvious over D1 combined with D3 (paragraph 73), and the other grounds are absorbed (paragraph 74). The patent was partially revoked and American Wave Machines ordered to bear the costs.

Key points for practice

• A default decision requires the facts put forward to justify the remedy: the division reviews the merits and may reject part of the claimant’s case (paragraphs 7, 11 and 20).
• The burden of proving common general knowledge lies on the party relying on it, even without an opponent (paragraph 20).
• For an invention combining hardware and a graphical interface, only interface features with a technical effect count towards inventive step (paragraph 60).
• Practical point: a revocation claimant seeking a default decision must still present a complete and proven ground, as the absence of a defence is not an admission.

Provisions applied

Rules of Procedure

Rules 49, 274.1(a)(ii), 277 and 355

Other instruments

Hague Service Convention

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Meril v Edwards, Court of Appeal, 25 November 2025, Paris Central Division, 22 January 2025, UPC_CFI_310/2023

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.