Référé-interdiction (interim injunction proceedings)

Definition : Référé-interdiction (interim injunction proceedings)

The référé-interdiction is the French procedure by which a patent proprietor asks the summary proceedings judge of the Paris judicial court to prohibit, on an interim basis and under a periodic penalty, the continuation or commencement of acts alleged to infringe. It is the ordinary route for the preliminary injunction provided for in Article L. 615-3 of the Intellectual Property Code. Adversarial, fast and enforceable as of right, it delivers within weeks what a trial on the merits would only give after years.

Why the concept matters

The référé-interdiction is the weapon of a proprietor in a hurry: launch of a generic or a biosimilar at the expiry of an exclusivity, copying of a product shown at a trade fair, marketing of an infringing component. It is also, for the defendant, the moment of truth of a launch-at-risk strategy, since an injunction granted at this stage closes the French market before any in-depth debate on validity. On both sides, it is prepared upstream: evidence of infringement, validity analysis, quantification of harm and, often, a prior saisie-contrefaçon.

Jurisdiction and the judge

Patent litigation falls within the exclusive jurisdiction of the Paris judicial court. The référé-interdiction is brought before the president of the court or the judge to whom he delegates it, in practice a judge of the chamber specialising in intellectual property, which ensures a technical assessment of the likelihood of infringement and of the strength of the patent. Where the case requires speed, the applicant may be authorised to serve the writ for a fixed hour, even on public holidays, which allows a hearing within days of service.

The conditions for an injunction

Article L. 615-3 does not require urgency in the ordinary sense, but likelihood: the judge may order the measures only if the evidence reasonably available to the applicant makes it likely that the patent is being infringed or that infringement is imminent. The proprietor’s slowness in acting after learning of the facts is not a bar, but it weakens the case for the necessity of the measure and weighs in the balance of interests.

The defendant most often pleads invalidity. The summary judge does not revoke the patent, but assesses whether the challenge is serious enough to deprive the infringement of likelihood; a patent whose validity is seriously challenged by relevant prior art does not support an injunction. The judge likewise assesses infringement, claim by claim, on the documents produced, in particular the saisie-contrefaçon report where one exists.

The measures and their safeguards

The judge may prohibit the acts at issue under a periodic penalty, order the seizure or delivery to a third party of the products suspected of infringement, require the defendant to provide security to ensure the proprietor’s possible compensation, and award an interim payment where the existence of harm is not seriously disputable. In return, the judge may make enforcement of the measures conditional on the applicant providing security to compensate the defendant if the action on the merits is later held unfounded. The summary order is provisionally enforceable; the appeal, available within fifteen days, does not suspend enforcement.

The proprietor must bring proceedings on the merits within the period fixed by regulation, namely twenty working days or thirty-one calendar days, whichever is longer, failing which the measures are set aside at the defendant’s request, without prejudice to the damages the defendant may claim.

The référé and the other routes

The référé-interdiction differs from the ex parte order, which Article L. 615-3 reserves for cases where circumstances require that measures be taken without hearing the defendant, in particular where any delay would cause irreparable harm; the defendant may then apply to have it withdrawn. It differs from the saisie-contrefaçon, an evidentiary measure ordered ex parte, which often precedes it and feeds its case. Finally, it differs from the application for provisional measures before the Unified Patent Court, which covers all contracting member states in a single decision but follows its own conditions, including an urgency requirement assessed by reference to the applicant’s diligence.

Key takeaways

The référé-interdiction is won on documents. A proprietor who comes with a saisie-contrefaçon report, a claim-by-claim infringement analysis and a patent whose validity withstands the known prior art obtains a fast and enforceable injunction. A defendant who has prepared its validity challenge, documented its non-infringement arguments and quantified the harm of an injunction has serious prospects of defeating it or limiting its scope. In every case, the deadline to sue on the merits makes the référé the prologue to the trial, not a substitute for it.

Sources

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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