Application for a preliminary injunction

The action for a preliminary injunction is the procedure by which the proprietor of a patent, or of another intellectual property right, asks the judge to prohibit the continuation of the acts alleged to be infringing before any judgment on the merits. Its aim is to stop the infringement quickly and to prevent irreparable harm. In patent law, the action for a preliminary injunction is provided for in Article L. 615-3 of the Intellectual Property Code, available on Légifrance.

The conditions of the action for a preliminary injunction

First, the applicant must produce reasonably available evidence making it plausible that its right is being infringed or that such infringement is imminent. The judge therefore examines, summarily, the apparent validity of the title and the plausibility of the infringement. Second, the application is in principle made in summary proceedings, inter partes. It may be made ex parte, without adversarial debate, where the circumstances require that the measures be taken without hearing the other side, in particular where there is a risk that evidence will disappear. Third, the judge may make the measures conditional on the applicant providing security.

The measures ordered

The judge may prohibit the continuation of the acts subject to a periodic penalty, order the seizure or delivery up of the products, order sums to be paid into court and order the disclosure of banking or commercial documents. Where measures are ordered before an action on the merits has been brought, the applicant must issue proceedings within a period set by regulation, on pain of the measures lapsing. The defendant may obtain compensation for the harm caused by measures that prove unjustified. The action for a preliminary injunction works together with the saisie-contrefaçon, which often provides the elements of plausibility.

Before the Unified Patent Court

The UPC may order provisional measures, including without hearing the defendant in urgent cases. It requires the applicant to act without unreasonable delay after becoming aware of the infringement, a period assessed in weeks rather than months, and it weighs the interests of the parties and the risk of irreparable harm. A protective letter allows the potential defendant to make its arguments known in advance. In practice, the firm conducts these urgent proceedings before the Paris tribunal judiciaire and the UPC, as presented on the page provisional measures and interim relief.