Yes and no, it seems. Well, yes and then no, if recent French decisions are anything to go by. In short, Hesitations Blues reign. This attitude is all the more interesting given that the question, which arose more especially in the FINGOLIMOD case, has been raised before several European courts, all of which are opposed to the position taken by the Paris High Court (“Tribunal Judiciaire de Paris”) (in Germany, Denmark and Spain). The discussion sparked off in France therefore remains singular. On the one hand, the Paris High Court has twice accepted this kind of actions (in the FINGOLIMOD case ..read more

My British colleague has already commented brilliantly on the UK ruling in this case from the point of view of plausibility (see here). For my part, I’d like to comment the French ruling in the same case, which takes the opposite view to the UK decision. We shall see that the French position is particularly pro-patent, more especially through the interpretation of the plausibility notion and of the priority right.   The facts Patent EP1427415 (“EP’415″) was filed in the name of Bristol-Myers Squibb Company (“BMS Company”) on September 17, 2002 in the form of international application PCT ..read more

“One person’s happiness is another person’s misfortune” (i.e., “le bonheur des uns fait le malheur des autres”)… This French proverb could easily be applied to the subject I’m dealing with today: conflicts between UPCA and national laws, which will undoubtedly be a joy for legal Counsels and a misfortune of the system’s users, mostly because of the resulting legal uncertainty. I’ll confine myself here to the case of French law, in keeping with my role here as French referent of this blog, but it should be noted that this problem is not particular to France; we also find, for instance, numerous ..read more

Many have reacted to the first post on the conflicts between national laws and UPCA. The various questions raised lead me to provide some additional food for thought. Firstly, as indicated in the first publication, the examples cited were not an exhaustive list. And here again, I call on my European colleagues to contribute to this subject (directly in reaction to my post or by contacting me, for example). That said, I would like to add here the case of exceptions to infringement. In this regard, UPCA gives a stricter definition of the “Bolar” exception (generic drugs, European Union MA) than ..read more

“One person’s happiness is another person’s misfortune” (i.e., “le bonheur des uns fait le malheur des autres”)… This French proverb could easily be applied to the subject I’m dealing with today: conflicts between UPCA and national laws, which will undoubtedly be a joy for legal Counsels and a misfortune of the system’s users, mostly because of the resulting legal uncertainty. I’ll confine myself here to the case of French law, in keeping with my role here as French referent of this blog, but it should be noted that this problem is not particular to France; we also find, for instance, numerous ..read more

“One person’s misfortune is another person’s happiness” (i.e., “le bonheur des uns fait le malheur des autres”)… This French proverb could easily be applied to the subject I’m dealing with today: conflicts between UPCA and national laws, which will undoubtedly be a joy for legal Counsels and a misfortune of the system’s users, mostly because of the resulting legal uncertainty. I’ll confine myself here to the case of French law, in keeping with my role here as French referent of this blog, but it should be noted that this problem is not particular to France; we also find, for instance, numerous ..read more

Here we are (at last), the UPC has opened its doors to claimants. Attorneys-at-Law before national Courts, like European patent attorneys, can now bear the new title of “UCP Representative” and thus exercise a new function of representative before UPC. This raises a number of questions for them. Like my colleagues, I have been consulted on the topic of possible actions before UPC for month now, sometimes recommending to go, sometimes not. In most cases, however, I have essentially questioned my clients’ real interest in using the system. Here are a few thoughts resulting from this exercise. Ob ..read more

The Unified Patent Court has formally announced that, for the time being, competencies which were originally assigned to the London seat of the UPC central division, will be divided between Munich and Paris. Remarkably, there is no mention of Milan as third seat of the central division. Only two months ago, a spokesperson for the German Ministry of Justice declared that trilateral talks about redistribution of the competencies between Paris, Munich and Milan were being held and that a decision was expected shortly. As the UPC writes today: ‘In its meeting of 8 May 2023, the Presidium of the Un ..read more

Article 124, III of the so-called “PACTE” Law enshrines the disappearance of the statute of limitations for revocation actions concerning industrial property titles. It was intended to put an end to the previous case law, which was thus disproved, applying the five-year limitation period of Article 2224 of the Civil Code to these actions, notably with the retroactive effect conferred by its transitional law rule (see M. Dhenne, “De la rétroactivité de l’imprescriptibilité des actions en annulation des titres nationaux de propriété industrielle”, Propriété industrielle No. 12, December 2019, ét ..read more

Many readers of this blog are familiar with the French saisie-contrefaçon, which consists of the seizure of allegedly infringing products and all related documents, but requires a writ of summons within one month of the saisie (e.g., here). Few of the same readers have probably heard of the protective seizure (“saisie conservatoire”), which allows similar measures to be authorized in the absence of infringement and which does not require a writ of summons within one month of the seizure. Indeed, according to Article 145 of the French Code of Civil Procedure, “if there is a legitimate reason to ..read more