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Adding is limiting

Syngenta Limited (hereinafter referred to as “Syngenta”), a company governed by the laws of England and Wales, is the holder of European patent No. 0 382 375 entitled “Fungicides”. On 28 September 2009, it submitted to the Institut national de la propriété industrielle (INPI; French Industrial Property Office) a request for limitation of a claim of the French designation of this patent (pursuant to Art. L. 613-24 of the French Intellectual Property Code; this voluntary limitation procedure independently of any litigation is possible in French law since 1st January 2009 and the entry into force of the French Act No. 2008-776 dated 4 August 2008).

Fungicide

More precisely, Syngenta sought to [...]

A saisie-contrefaçon is not a fishing expedition

The French saisie-contrefaçon is known to be an extremely powerful and effective tool to collect evidence of infringement of a patent (as of any other intellectual property right, see “Saisie-contrefaçon” on Wikipedia and also P. Véron et alii, Saisie-contrefaçon, Paris, Dalloz Action, 3rd ed. 2013-2014). It is a procedure that allows to request and obtain from the Presiding Jugde of the tribunal de grande instance de Paris, an order authorizing the patentee to send a bailiff in order to make a descriptive seizure (which consists in a description by the bailiff’s report of infringing objects and of all facts that could prove the infringement) or physical seizure (where samples of the [...]

A poor consolation

On 15 January 2013, the French Cour de cassation, in the litigation between the Novartis companies and the Actavis companies about valsartan, drew the consequences of the 9 February 2012 order rendered by the CJEU in the frame of a parallel litigation in the United Kingdom.

As already explained in a previous post, the company governed by the laws of Switzerland, Novartis AG, was granted European patent EP 0 443 983 relating to “acyl compounds”, including valsartan, and, after its expiry, a supplementary protection certificate (SPC) No. 97C0050 which was in turn the subject of a pediatric extension expiring on 13 November 2011.

valsartan

The company governed by the laws of France, Novartis Pharm [...]

A too distant expiry

Faithfully implementing Article 9 §4 of Directive No. 2004/48/EC, Arti-cle L. 615–3 of the French Intellectual Property Code (hereinafter referred to as “IPC”) authorizes French courts to grant an interim injunction order after an inter partes proceedings (before the Judge ruling in preliminary proceedings) but also after an ex parte proceedings. As required by the EC Directive, the ex parte proceedings is reserved for the appropriate cases, where it seems necessary, “when the circumstances require that such measure should not be taken in the presence of both parties, in particular when any delay would be likely to cause an irreparable damage to the claimant”.

But, in practice, wha [...]

Allocation of the profits made by the infringer as damages

Since French Act No. 2007-1544 of 29 October 2007, which implemented Directive No. 2004/48/EC into French law, it is expressly stated in Article L. 615-1 of the French Intellectual Property Code (IPC) that “Any violation of the rights of the owner of a patent (…) shall constitute an infringement. An infringement shall imply the civil liability of the infringer”. The civil sanction for patent infringement is therefore a matter of civil delictual liability as governed by Article 1382 (and Article 1383) of the French Civil Code, which states the general and classical principle according to which “Any human deed whatsoever which causes harm to another creates an obligation in the person by who [...]

Civil liability because of the enforcement of a preliminary injunction: the priority question on constitutionality

Thanks to the constitutional revision of 23 July 2008 (which created Article 61-1 and amended Article 62 of the French Constitution), a new procedure to control the constitutionality of laws was introduced into French law, which came into force on 1st March 2010: the “priority question on constitutionality” (“question prioritaire de constitutionnalité”). Before this reform, the constitutionality could only be verified before the promulgation of laws on the initiative of a limited number of politicians. Now, this control can occur even after the promulgation of laws and on the initiative of any person who, in a judicial or administrative proceedings, is subjected to a law which he co [...]

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