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 remains confidential. It is communicated to the division concerned only if an application for provisional measures is actually filed against its author. It is valid for six months, renewable upon payment of a fee. A company at risk must therefore keep a renewal calendar, or lose the protection at the very moment it would be useful.

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 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 lawyer and the Rules of Procedure on the website of the Unified Patent Court.