Application for a saisie-contrefaçon

The application for a saisie-contrefaçon is the document by which a patent holder asks the President of the Paris Judicial Court to authorise a judicial officer to record the infringement at the premises of the alleged infringer. It is submitted without the opponent being informed, under Article L. 615-5 of the Intellectual Property Code, and is governed by the rules on ex parte orders in Articles 493 et seq. of the Code of Civil Procedure.

Content of the application

The application establishes the applicant’s standing (patent holder, co-owner or licensee entitled to act), shows the existence and apparent validity of the patent, then sets out the evidence of infringement. It then defines the task: premises to be visited, persons authorised to accompany the judicial officer, detailed description, taking of samples, copying of technical, accounting or commercial documents. A task that is too broad exposes the order to withdrawal; one that is too narrow leaves the evidence incomplete.

The duty of fairness

The judge rules solely on the applicant’s account. The application must therefore mention the adverse facts known to the applicant: pending invalidity proceedings, limitation of the patent, a contrary foreign decision, prior contractual relations with the party to be searched. Failure to mention such a fact is the leading cause of withdrawal by the judge who granted the authorisation.

After the order

The order is enforceable on production of the original alone, and a copy is handed to the party searched at the start of the operations. The applicant must then bring its action on the merits within the time limit set by the regulatory part of the Code (twenty working days or thirty-one calendar days, whichever is longer), failing which the seizure is void. The choice between descriptive saisie-contrefaçon and saisie-contrefaçon with physical seizure is made in the application, not on the day of the operations.

Key points

An application for a saisie-contrefaçon is drafted as a complete procedural document, not as a preliminary formality. It determines what the judicial officer may look for, and nothing can be added on site. The two most frequent causes of failure are a disproportionate task and silence about a fact known to the applicant.

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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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