Provisional measures: obtaining or resisting an injunction
The fastest weapon in litigation. The article L. 615-3 CPI allows any person with standing to obtain, by way of urgent application or ex parte, any measure intended to prevent or stop an imminent or established infringement: provisional injunction under a periodic penalty, seizure of products, provision of security. The judge rules on the likelihood of infringement, which puts the validity of the patent and the demonstration of infringement at the centre of the debate, within a tight timetable. Where the measures are ordered before any trial on the merits, the applicant must bring the action on the merits within the regulatory period, failing which they lapse (art. R. 615-3 CPI).
Before the UPC
The provisional measures of Article 62 UPCA (injunction, seizure, precautionary seizure of assets) follow their own grid: assessment of validity, urgency, proportionality and balance of interests, with a pan-European dimension that multiplies what is at stake, since an injunction may cover most of the European market. Preparing a provisional measures file UPC, for applicant and defendant alike (protective letters included), is a specific exercise and one we command.
On both sides of the bar
Obtaining an injunction means knowing what makes it fail. Resisting one means knowing what makes it succeed. We argue these proceedings in both directions and always address their industrial dimension: stock, delivery commitments, crisis communication, security to be provisioned.
The court’s review
Three questions decide the fate of an application for provisional measures. The likelihood of infringement, which requires a reading of the claims and a technical comparison that are already solid at the urgent stage. The likelihood that the patent is valid, which the defendant will immediately attack with the closest prior art. Finally proportionality, where the age of the contested exploitation, the applicant’s diligence and the economic consequences of the injunction for each party all weigh. An applicant who has let months pass before acting undermines its own urgency.
The price of success: security
A provisional injunction is often obtained against the provision of security intended to compensate the defendant if the infringement action is later found unfounded or the measures are set aside (art. L. 615-3 CPI). The Agreement on a Unified Patent Court provides an equivalent mechanism. That deposit is quantified and provisioned before the hearing, not after. Symmetrically, the defendant who obtains release may claim compensation for the harm caused by an unjustified injunction.
The protective letter
Before the Unified Patent Court, a company fearing an injunction obtained without being heard may lodge a protective letter with the Registry. It sets out in advance the pleas of invalidity and non-infringement, remains confidential and is communicated to the division only if an application for provisional measures is actually filed against its author. It is valid for six months, renewable. Well drafted, it turns a unilateral procedure into an adversarial debate. Badly drafted, it gives away the defence before the trial.
French summary proceedings in practice
The urgent applications judge of the Paris Judicial Court sets short deadlines and a timetable for exchanges fixed at the first procedural hearing. A saisie-contrefaçon carried out beforehand provides the evidence, but its own time limit for bringing the action on the merits runs in parallel: the two sets of proceedings are coordinated from day one, at the risk of losing the evidence while winning on urgency.
The admissibility of an application for provisional measures based on a mere European patent application, not yet granted, was accepted by the Paris Judicial Court on 3 June 2022 in Novartis v Biogaran. We analyse its scope and limits in this study.
The same question is taken up in English, in the light of diverging European positions, in our Fingolimod study. On the choice between France and Germany to obtain a provisional injunction, see our comparison.
A few matters that illustrate our practice
Drones: patent infringement action
Assisting a drone manufacturer in a patent infringement action before the Paris Judicial Court. Preparation of evidentiary measures, technical analysis, drafting of the pleadings on the merits and response to procedural incidents.
Medical devices: infringement action before the UPC
Representation of a medical device manufacturer in an infringement action before the Unified Patent Court, alongside a foreign firm. Work on the analysis of the patent, the demonstration of the alleged infringement and the remedies sought.
Analyses and publications to go further
Frequently asked questions
At what stage should you instruct a patent litigation attorney?
As soon as a launch, a cease-and-desist letter or proceedings are contemplated. Analysing the patent, the evidence and the forum makes it possible to prepare decisions before the timetable imposes them.
Does the firm act for claimants and defendants?
Yes. The firm conducts infringement actions and defences, revocation claims and evidentiary incidents before the French courts and the UPC.
Does the attorney file patent applications?
The firm focuses on litigation. Drafting, filing and proceedings before the EPO are handled by patent attorneys, with whom the strategy is coordinated.
Discuss your matter
An injunction to obtain (or to resist) urgently?