Good faith in infringement proceedings

The good faith of the infringer refers to the situation of a person who commits an act of infringement without knowing that it interferes with an intellectual property right. In principle, good faith is irrelevant in civil matters. Infringement is constituted by the mere interference with the right, irrespective of the intention of its author. Patent law however provides an important exception of considerable practical significance.

The exception in patent law

Under Article L. 615-1 of the French Intellectual Property Code, the offering, placing on the market, use, or stocking with a view to use or placing on the market of an infringing product, where those acts are committed by a person other than the manufacturer or the importer, engage the liability of their author only if they were committed knowingly. In other words, the good faith of the infringer protects the distributor, the reseller or the user, but never the manufacturer or the importer. The provision can be consulted on Légifrance.

Formal notice and knowledge

First, knowledge may be established by any means. Second, a formal notice sent by the holder to the distributor triggers the latter’s liability from its receipt, unless the distributor shows that it could not have known of the infringement. Third, the mere publication of the patent is not sufficient, in principle, to establish the reseller’s knowledge. The holder therefore has an interest in notifying its title quickly to the whole distribution chain before bringing a patent infringement action.

Good faith in the other rights

In trade mark law, copyright and designs, good faith does not exonerate from civil liability. It may however be taken into account in the assessment of the loss, and it excludes criminal liability, which requires intent. Good faith also plays a role in the prior user right, which protects the person who exploited the invention in good faith before the filing. The firm integrates these rules into the writ and defence strategy presented on the page bringing a patent infringement action.