Patent infringement

Infringement of a patent means any interference with the rights conferred by the patent. It occurs in particular where a person makes, sells or uses a patented invention without the proprietor’s authorisation.

Acts of infringement

Article L. 613-3 of the French Intellectual Property Code lists these acts precisely. First, without the proprietor’s consent, no one may make, offer, put on the market, use, import, export or tranship the patented product. The law also prohibits stocking it for those purposes. Next, it prohibits use of the patented process. It likewise prohibits offering that use in France where the third party knows that it is prohibited, or where the circumstances make it obvious. Finally, the same prohibitions apply to the product directly obtained by the patented process. In addition, Article L. 613-4 sanctions the supply of means, or indirect infringement. It prohibits supplying or offering to supply in France means for implementing the invention to a person not entitled to exploit it. Those means must relate to an essential element of the invention. The third party must also know, or the circumstances must make it obvious, that the means are suitable and intended for that implementation.

Consequences of infringement

Patent infringement has several legal consequences, including the following.

1. Civil liability. The proprietor may sue the infringer for damages.
2. Criminal liability. In certain cases, infringement is also an offence punishable by fines and imprisonment.
3. Preliminary injunction. The proprietor may also ask the court to prohibit the infringer from continuing to make, sell or use the invention.
4. Confiscation of infringing products. The court may further order the seizure and destruction of the products, or their delivery to the proprietor.
5. International disputes. Finally, patents are national in scope, whereas infringement often affects several countries. The dispute therefore frequently takes on an international dimension.

Patent infringement thus exposes the parties to high litigation costs and financial sanctions. It may also damage their reputation. This is why a patent litigation attorney acts alongside the patentee or the alleged infringer. See our practice pages: bringing a patent infringement action, defending against an infringement claim and the saisie-contrefaçon.

Key takeaways

Patent infringement is assessed objectively, regardless of the good faith of the person who committed it, save for certain acts where knowledge is required. It is established claim by claim, which requires a technical analysis before any step is taken. The proprietor has a range of measures available, from the preliminary injunction to product recall, the choice of which depends on the market at stake more than on principle.

Before bringing proceedings or responding to a demand letter, our patent litigation readiness review helps frame the evidence, objectives and proposed course of the dispute.