Application to retract an ex parte order (référé-rétractation)

The référé-rétractation is the procedure available to a person targeted by an ex parte order to obtain its withdrawal from the judge who made it. Article 496, paragraph 2, of the Code of Civil Procedure allows any interested party to refer the matter back to that judge, and Article 497 allows the judge to modify or withdraw the order, even where the court has been seised of the merits. In patent litigation, the application is directed against the order authorising a saisie-contrefaçon.

The judge’s task on an application to retract

The judge assesses the situation as at the date of the authorisation and this time rules, after hearing both parties, on whether the measure was justified. It checks the applicant’s standing, the apparent validity of the patent relied on, the fairness of the account of the facts and the proportionality of the task given to the judicial officer. Concealment of a decisive element, such as pending invalidity proceedings, a licence granted to the party searched or a contrary foreign decision, is in itself sufficient for the order to be withdrawn.

Effects of withdrawal

Withdrawal annuls the order and deprives the report drawn up in execution of it of any evidential value. The documents seized must be returned and can no longer be produced in the main proceedings. The applicant is then usually unable to reconstitute its evidence, the element of surprise having been used up. The party searched may also claim compensation for the harm caused by operations carried out on its premises without a valid basis.

The place of the référé-rétractation in the defence

The complaint raised determines the route: a defect in the authorisation is a matter for the judge who granted it, while exceeding the scope of the task is a matter for a challenge to the operations themselves. The defence frequently combines this application with a counterclaim for invalidation of the patent and with a challenge to an application for a provisional injunction brought at the same time.

Key points

An application to retract is prepared as soon as the report is received, within a useful time frame measured in days. The most effective ground remains the fairness of the application, since the judge ruled solely on the applicant’s account. A successful withdrawal leaves the opponent without admissible evidence and shifts the balance of the dispute.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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