However, a recent case between Philips and Thales provides a good illustration of how this kind of seizure can be used in patent litigation (Tribunal judiciaire de Paris, 13 September 2022). In this case, infringement actions for GSM standard essential patents and a discovery procedure had been initiated in the United States by Philips against Thales after unsuccessful FRAND negotiations. Thales, which sought to prove Philips' abusive behavior during these negotiations, was authorized to carry out a protective seizure in France to recover documents that could prove the alleged abuse. Philips subsequently sued Thales to have the order retracted. This claim was dismissed by the judge.
The decision is interesting in that the judge specifies the conditions under which a protective seizure may be admitted and preferred to a seizure. The request must specify the circumstances that justify the departure from the adversarial principle. In this case, the justification lay in the fact that the documents sought consisted primarily of email exchanges, which could therefore be easily destroyed.
It should also be noted that the failure to disclose the parallel discovery procedure at the time of filing the request was not considered unfair, since, unlike the seizure, the protective seizure does not require the presentation of all the facts, but only those that justify the departure from the adversarial principle.
This example serves as a reminder that the protective seizure can be considered an alternative to the seizure as soon as a justification for departing from the adversarial principle is provided. Such an alternative may seem especially appealing as it does not require the seized party to be summoned within a month of the operations, and the grounds for retraction appear to be fewer than with a seizure. However, unlike the latter, the protective seizure must always be carried out before any litigation in France.
