1 May 2010EuropeStéphane Agasse

New rules for French patents

Changes to the IP law

Article L.615-3 CPI

Before the entry into force of Directive 2004/48/ EC, Article L.615-3 CPI of French IP law said: “Where proceedings are brought before the Court for infringement of a patent, the President of the Court, acting and ruling in summary proceedings, may provisionally enjoin, under penalty of a daily fine, the carrying out of the allegedly infringing acts (…) if the substantive proceedings appear well founded and are instituted within a short time of the day on which the patentee became aware of the facts on which the proceedings are based.”

Under this law, a preliminary injunction proceeding was only available to the patentee after the introduction of an action on the merits. Consequently, the preliminary injunction proceeding was ‘derived’ from the action on the merits, so that both legal actions were to some extent ‘connected’.

In addition, the same judge was in charge of granting injunctions and dealing with the substance of the case, and one of the main requisites for granting an injunction was that the main action appeared to be well funded. Accordingly, if an injunction was requested, the judge started by examining the potential validity (or invalidity) of the patent and the seriousness of the action.

Current Article L.615-3 CPI

Following the implementation of Directive 2004/48/EC, Article L.615-3 CPI was amended and now stipulates:

“Any person having the right to sue for infringement may bring summary proceedings before the competent civil court in order to have ordered, if need be under penalty of a daily fine, any measure intended to prevent an imminent infringement of the rights conferred by the property right or to stop the continued carrying out of allegedly infringing acts, against the alleged infringer or intermediary agents whose services the latter uses.

Upon request, the competent civil court may also order any urgent measure, when circumstances command that such measures should not be taken in the presence of both parties, in particular when any delay might cause irreparable damage to the plaintiff. Ruling in summary proceedings or upon request, the court may only order the requested measures if evidence, reasonably accessible to the plaintiff, credibly establish that his rights are being infringed or that such infringement is imminent.

The new Article L.615-3 CPI therefore makes new ‘weapons’ available to patentees (e.g. originator companies) to prevent the launch or to stop the commercialisation of a product (e.g. a generic medicine). In particular:

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