Right of information

The right of information allows the court to order the production of documents needed to establish the origin and distribution networks of infringing products. For patents, it is provided for in Article L. 615-5-2 of the Intellectual Property Code, which transposes Article 8 of Directive 2004/48 of 29 April 2004. The measure may be ordered, if necessary, subject to a penalty payment.

Purpose of the right of information

The information covered is the names and addresses of producers, manufacturers, distributors, suppliers and holders of the products, the quantities produced, marketed, delivered, received or ordered, and the price obtained. Production therefore concerns accounting and commercial documents, often certified by an accountant. The right of information thus serves to establish the basis for compensation, which the injured party cannot establish on its own.

Limits of the measure

The request requires evidence suggesting infringement and cannot be used to explore a competitor's business. The protection of trade secrets is ensured by placing documents in escrow, by disclosure to a restricted circle of persons or by redacting data, the court weighing evidential value against confidentiality. Finally, the obligation extends only to what the defendant actually holds, and a refusal to produce is sanctioned by a penalty payment or by the inferences drawn from silence.

The right of information before the UPC

Article 67 of the Agreement on a Unified Patent Court empowers the Court to order the communication of information of the same kind, against the infringer and, under certain conditions, against third parties. The mechanism complements theorder to preserve evidence and in practice extends what the saisie-contrefaçon provides under French law.

Key points

The measure is requested in two stages: the principle in the writ, the details in an operative part listing the documents expected and the period covered. Without it, compensation falls back on the royalty-based lump sum. Protection of the information obtained should be discussed from the outset, since it governs how the information may later be used.

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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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