Preliminary injunction (référé-interdiction)

The référé-interdiction is the procedure by which a patent proprietor asks the judge, before any judgment on the merits, to provisionally prohibit the continuation of the acts alleged to be infringing. In France, it is based on Article L. 615-3 of the Intellectual Property Code. In practice, it is the fastest weapon in patent litigation.

The conditions of the référé-interdiction

First, the applicant must show that the infringement of its rights is plausible. In other words, it must demonstrate that the patent is in force, that its validity is not seriously open to challenge and that the disputed product or process reproduces the claims. Second, the judge assesses urgency and whether the infringement is imminent or established. Third, the judge weighs the interests at stake, in particular the harm the prohibition would cause the defendant if the patent were later revoked.

The measures the judge may order

The judge hearing the application may issue a prohibition subject to a periodic penalty, order the seizure or delivery up of the products, and make the continuation of the acts subject to the provision of security. The judge may also order the disclosure of accounting documents. However, the judge does not rule on the validity of the patent, which is a matter for the court hearing the merits. Consequently, the preliminary decision has no res judicata effect on that point.

The deadline to sue on the merits

Where the measures are ordered before any action on the merits, the applicant must bring that action within the period set by regulation. Failing that, the measures lapse and the defendant may seek compensation. This mechanism echoes that of the saisie-contrefaçon, with which the référé-interdiction is often combined.

The référé-interdiction before the UPC

Before the Unified Patent Court, the equivalent is the application for provisional measures under Article 62 of the Agreement. The regime differs, however: the European judge assesses validity more thoroughly and may require security from the applicant. Likewise, the defendant may protect itself with a protective letter.

The firm argues applications for preliminary injunctions on both sides, before the Paris tribunal judiciaire and before the Unified Patent Court. See our page provisional measures and interim relief and the text of Article L. 615-3 on Légifrance.