Protective brief (mémoire préventif)
Definition : Protective brief (mémoire préventif)
The protective letter (mémoire préventif) is a written submission filed with the Registry of the Unified Patent Court by a company that fears an application for provisional measures against it. It is provided for in Rule 207 of the Rules of Procedure. Its purpose is simple: to have the defence heard before an injunction is issued without a hearing.
The content of the protective letter
The protective letter sets out, in advance, the reasons why an application for provisional measures should be rejected. It thus presents the grounds for revocation of the patent, the non-infringement arguments and the elements relating to the balance of interests. Likewise, it may offer security or request that the measure be ordered only after a hearing. In practice, drafting it requires a full analysis of the title and the product, as for a defence on the merits.
Duration and confidentiality
The protective letter is not publicly available before it is forwarded to the applicant. Its subsequent disclosure is explained below.
Sa durée de validité est de six mois, renouvelable moyennant le paiement d’une taxe. Par conséquent, une entreprise exposée doit tenir à jour un calendrier de renouvellement, sous peine de perdre la protection au moment où elle serait utile.
Effects on the proceedings
When an application for provisional measures is filed, the judge reads the protective letter before ruling. However, the judge is not bound to order a hearing. A well-constructed letter nevertheless makes an ex parte decision much more difficult, since the judge already has the defendant’s objections. Conversely, a poorly drafted letter hands the defence to the opponent before the trial.
The French equivalent
French law has no protective letter before the Paris tribunal judiciaire. There, the defendant challenges the Référé-interdiction (interim injunction proceedings) at the hearing, and the saisie-contrefaçon through an application to retract the order. The firm drafts and monitors protective letters for its clients exposed to an action before the Unified Patent Court. See our page UPC attorney and the Rules of Procedure on the website of the Unified Patent Court.
Protective letters and cross-border proceedings
The French expressions lettre de protection and mémoire préventif refer here to a protective letter. The filing identifies the prospective parties, the patent and, where available, earlier or pending proceedings. It may set out the facts, evidence and legal arguments supporting rejection of an application for provisional measures.
Confidentiality is temporary: once an application for provisional measures is lodged, a copy is forwarded to the panel or judge and to the applicant under Rule 207 of the Rules of Procedure. The letter therefore guarantees neither continuing confidentiality nor an oral hearing.
In Germany, a Schutzschrift is filed in the central electronic register under section 945a of the German Code of Civil Procedure. This national filing is distinct from a filing before the UPC.
Go further
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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