Procedural objection and incidental application (incident de procédure)

A procedural incident (incident de procédure) is any challenge raised in the course of proceedings that concerns their regularity or conduct rather than the substance of the right at issue. The notion mainly covers procedural objections, defined by Article 73 of the French Code of Civil Procedure, pleas of inadmissibility, defined by Article 122, and incidental matters affecting the course of the proceedings, such as joinder, suspension, interruption or lapse. It is distinct from a defence on the merits, which seeks dismissal of the claim as unfounded.

Procedural objections

A procedural objection seeks a declaration that the proceedings are irregular or extinguished, or a suspension of their course. It covers lack of jurisdiction, lis pendens and related actions, dilatory objections and the nullity of procedural acts. Under Article 74 of the same Code, objections must be raised together and before any defence on the merits or plea of inadmissibility, failing which they are inadmissible. Nullity for a defect of form also requires proof of prejudice, whereas nullity for a substantive irregularity, such as lack of authority, may be raised at any stage of the proceedings.

Pleas of inadmissibility

A plea of inadmissibility seeks a declaration that the opponent’s claim is inadmissible, without examination of the merits, for lack of a right of action. It applies in particular to lack of standing or interest, limitation, expiry of a fixed time limit and res judicata. Unlike objections, it may be raised at any stage of the proceedings, although a party who deliberately refrained from raising it earlier for dilatory purposes may be ordered to pay damages. In intellectual property, the licensee’s standing, ownership of the right at the time of the acts and the limitation period for infringement actions are classic battlegrounds.

Competent judge and timetable

Before the judicial court, the pre-trial judge has sole jurisdiction over procedural objections and incidental applications that bring the proceedings to an end, and the parties can no longer raise them afterwards unless they arose or came to light after the judge relinquished the case. An incidental application may also lead to a stay of proceedings, which is often debated when an opposition is pending before the EPO.

Key points

The procedural objection is often the first line of defence, and the one most exposed to foreclosure. All available objections should be identified as soon as counsel is appointed and raised together, before any argument on the merits. Pleas of inadmissibility, though more flexible in timing, are still best raised early, to avoid a costly technical debate that may prove unnecessary.

---

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.

Patent litigation · Unified Patent Court · UPC case law · Tell us about your situation