Order: ORD_59030/2024
Action: ACT_953/2024

Nordic-Baltic Regional Division
UPC_CFI_9/2024
Order
of the Court of First Instance of the Unified Patent Court
delivered on 29 October 2024

CLAIMANT
TEXPORT Handelsgesellschaft mbH, Franz Sauer Straße 30 - 5020 - Salzburg - AT
Represented by Thomas Adocker, Michael Babeluk and Martin Babeluk

DEFENDANT
Sioen NV, Fabriekstraat 23 - 8850 - Ardooie - BE
Represented by Véronique Pede and Antonin Lambrecht

PATENT AT ISSUE
EP2186428

DECIDING JUDGE
This order has been issued by the judge-rapporteur/presiding judge Stefan Johansson

COMPOSITION OF FULL PANEL
Presiding judge and judge-rapporteur Stefan Johansson
Legally qualified judge Kai Härmand
Legally qualified judge Alima Zana

LANGUAGE OF THE PROCEEDINGS
English

SUBJECT-MATTER OF THE PROCEEDINGS
Infringement proceedings

SUMMARY OF FACTS
The Court held an interim conference on 16 October 2024 by video. At the request of the
Defendant, the Court refrained from closing the written procedure before the interim conference.
This Order sets out the decisions taken during – or following – the interim conference.
The value of the case
The Claimant has suggested that the value of the action/proceeding is set to 500.000 EUR (Rule
370.6 and Rule 152.3).
The Defendant has not objected to setting the value to 500.000 EUR.
The Court agrees to set the value to said amount.
The parallel case in Brussels and the Preliminary Objection
The Parties informed the Court of the parallel case in Brussels and submitted oral comments on
what this, according to them, meant for the Preliminary Objection. During the discussion, the
Defendant agreed that request V in the Preliminary Objection (concerning the Claimant’s right to
initiate these proceedings) should be referred to the main proceeding.
After the discussion, the Court concluded that there is no need for further written comments. The
Court also decided to close the written procedure, and to issue a separate order on the Preliminary
Objection which may have the effect that some requests in the objection are referred to the main
proceedings.
The Defendant’s requests to exclude arguments and written statements
At the interim conference, the Defendant clarified that it “only” requests that the Court dismisses
(excludes from the proceedings) the written statement/opinion by Mr and the two
written statements by Mr as well as the Claimant’s reasoning in the reply to the
statement of defence that relates to these documents (paragraphs 44-46, 70-73, 109-110, 117-
119 and 155-161).
The Defendant’s main arguments for these requests are that the Claimant could and should have
included this in the Statement of Claim, that the first statement by Mr is not
intended for these proceedings and does not comply with the formal requirements in Rule 175 ff.
RoP, that the second statement by Mr is dated after the Defendants’ rejoinder and
did not even exist when the reply to the Statement of Defence was submitted, and that the
Declaration of Impartiality of the State Testing Centre does not allow its head – Mr –
to provide ex parte reports to a commercial company such as Texport as a party in legal
proceedings.
The Claimant has opposed these requests. According to the Claimant, these additional arguments
and evidence were submitted as a reply to the arguments and evidence presented by the
Defendant in its statement of defence. When the Defendant by its rejoinder made the Claimant
realize that it had submitted the wrong version of the statement by Mr Mr
clarified one or two sentences in the written statement before it was submitted. This is why it is
dated after the rejoinder. The Claimant’s comments concerning Mr written statement
are incorrect and irrelevant.
In the Courts view, the further arguments and evidence submitted by the Claimant must be seen
as a justified reaction and reply to the Statement of Defence. Therefore, the starting point is that
they should be allowed, unless there are other reasons for excluding them.
It is, according to the Court, irrelevant if Mr employer would have problems with his
written statement in this case. This does not make the statement inadmissable.
When it comes to the written statements by Mr the Court notes that the reply to
the Statement of Defence cites a number of quotations from Mr that cannot be
found in the written statement that was attached, but they are included in the second written
statement that was submitted after the Defendant had raised this question in its rejoinder.
Furthermore, the first written statement explicitly states that it has been drafted for the
proceedings in Belgium. Therefore, it is in the Court’s view obvious that the Claimant attached the
wrong version to its reply to theStatement of Defence. The fact that the second written statement
is dated after the rejoinder could potentially cause problems. However, in this case it was filed
almost immediately after the rejoinder – which made the Claimant aware of its mistake – and does
not contain much more information than what was described in the reply to the Statement of
Defence. Therefore, the Court finds that it is admissable.
Accordingly, the Defendant’s requests shall be dismissed.
Request for a TQJ
The Claimant has requested that a Technically Qualified Judge shall be allocated to the case,
preferably from mechanics, if possible with experience from textile fabrics/structures.
The Defendant has not objected to the allocation of a Technically Qualified Judge, and agreed on
the preferred expertice of this judge.
The Court confirmed that it will request the allocation of such a judge.
Practical arrangements for the oral hearing
The oral hearing will take place at the Nordic-Bal􀆟c Regional Division in Stockholm, Sweden, on
11 February 2025.
Both Parties intend to submit samples of the textiles in question. Since they are not based in
Stockholm, none of them see the need for the other Party to submit these samples before the day
of the oral hearing. For these reasons, the Court informed the Parties that it is sufficient if they
bring these samples to the oral hearing.
Both Parties confirmed that they don’t see the need to hear wittnesses/experts. Therefore, the
Court confirmed that no witnesses/experts will be heard.
After consulting the Parties, the Court concluded that the oral hearing will be structured as follows:
- After the introduction by the Court, the Parties will be given not more than 1,5 hours each
to present their case. During these presentations, the Court expects the Parties to focus on
important facts that are disputed, in particular whether the Defendant’s products have a
knitted layer/material that consists of a waffle structure (in the meaning of the Patent),
whether the Defendant’s participation in a public tender (that was not granted) constitutes
an offering/offer to supply the products, and any additional comments on the requested
remedies. The Parties may choose in which order they deal with these questions in these
oral submissions.
- After lunch, there will be time for short responses by the Parties and additional questions
by the Court.
- The Parties are encouraged to use PowerPoint-presentations. If they intend to do so, they
shall upload these presentations as a reply to this order at least 24 hours before the oral
hearing.
- The Parties may submit short pleading notes (not more than 15 pages), but are not obliged
to do so. If they wish to submit pleading notes, they shall upload them as a reply to this
order at least 24 hours before the oral hearing.
Estimation of costs
The Parties have agreed that the time for the submission of the preliminary estimate of the legal
costs shall be set to a date about one month after this order has been issued.

ORDER
1. The value of the action/proceeding is set to 500.000 EUR
2. The written procedure is hereby closed.
3. The Court will deal with the Preliminary Objection in a separate order.
4. The Defendant’s requests to exclude arguments and written statements are dismissed.
5. The Court will request the allocation of a Technically Qualified Judge.
6. The oral hearing will take place at the Nordic-Bal􀆟c Regional Division in Stockholm, Sweden, on
11 February 2025.
7. It is sufficient that the Parties submit the envisaged samples of the textiles at the beginning of
the oral hearing.
8. The Parties shall, by 2 December 2024, submit a preliminary estimate of the legal costs that they
will seek to recover. The document shall be uploaded in the workflow created by this order.
9. If the parties intends to use PowerPoint-presentations and/or submit short pleading notes (any
pleading notes shall not be more than 15 pages), these documents shall be submitted at least
24 hours before the oral hearing. The documents shall be uploaded in a workflow created by this
order, which will be visable when the opposing party has submitted the document referred to in
paragraph 8.
-----------------

Done and delivered in Stockholm on 29 October 2024.
Stefan Johansson