INTRODUCTION Contributed by: Andreas von Falck, Hogan Lovells International LLP
edition of the MWC Barcelona (an annual trade show dedicated to the mobile communications industry). Implementers have been looking to obtain protection against potential ex parte PIs and product seizures, typically taking place dur- ing the early morning of the first day at the fair. The Barcelona Commercial Courts, along with the EU Trademark and Design Court, based in Alicante, remain fully committed to acting swiftly before and during the MWC and issue their deci- sions on ex parte PI and seizure petitions within hours from filing. Finally, on the legislative front, the Spanish Par- liament has approved Organic Law 1/2025, of 2 January, on Measures for the Efficiency of the Public Justice Service, which will enter into force in April 2025. The aim of the law is to improve the administration of justice by optimising the man- agement of resources, reducing litigiousness and streamlining court procedures. It introduc- es far-reaching organisational and procedural changes, including the replacement of current single-judge courts by collegial courts with specialised sections (ie, the so-called Instance Courts) in each judicial district, a substantially different legal costs regime, and new rules for the service of claims upon legal entities. One of the most significant developments is the establishment of ADR methods as a procedural requirement for the admissibility of civil claims, including patent-related claims. Evidence in the form of a certificate showing that ADR has been attempted must be filed with the complaint. ADR methods include mediation, conciliation, intervention of independent experts, binding confidential offers, collaborative processes and direct negotiation between the parties or their lawyers. Direct negotiations must meet a num- ber of requirements to be considered valid. No ADR attempts are required in the case of PIs
prior to the complaint and inspection and inquir- ies proceedings. France In 2024, French Courts clarified and reaffirmed some of the distinctive legal mechanisms which are available to patentees asserting their rights in France. With respect to evidence gathering, the Paris Court of Appeal ruled that in the context of French evidentiary seizures (“ saisie-contrefaçon ”), it is possible to seize any digital file that is accessible from the computers located on the French premises where the seizure takes place, including the source code of a software, irre- spective of the location of the servers on which the files are stored (Paris Court of Appeal, 25 October 2024, Docket Number 23/17701). In the same decision, it also clarified that a sai- sie-contrefaçon cannot be denied on the sole ground that the applicant may seek to use the seized evidence for parallel proceedings abroad, as long as such use abroad is not the “sole purpose” of the seizure. This makes the saisie- contrefaçon an interesting tool in the context of cross-border litigation strategies. In terms of substantive law, the French Supreme Court reaffirmed that, as a matter of principle, infringement is present when the so-called “essential means” of the invention are found in the accused product (Cass. Com. 20 March 2024, case 22-22.406). This decision confirms that under French law, literal infringement may be invoked even in the presence of differences in secondary features, as long as these differ- ences do not relate to the “core” of the patent’s inventive contribution. At a time when the criteria for infringement by equivalence are a hot topic across Europe, this is an interesting reminder that an alternative route may be available in
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