Saisie-contrefaçon and trade secrets: protecting the seized party

Updated on 30 August 2026.

The saisie-contrefaçon lives on surprise; trade secrets live on retention. Since Law No. 2018-670 of 30 July 2018, these two logics collide at the most sensitive moment of litigation: the moment when the judicial officer takes away, from the seized party's premises, documents the applicant would never have obtained otherwise.

The French Supreme Court has settled the method: the seized party's protection runs through provisional sequestration, provided for in the order itself, and through nothing else. This framework, laid down on 1 February 2023, has since been enriched by case law clarifying who may release the sequestration, how the sorting of documents operates and what the applicant must disclose to the judge. It must be mastered on both sides of the saisie-contrefaçon.

The founding ruling of 1 February 2023

The case pitted Teoxane, proprietor of a European patent, against Laboratoires Vivacy. On the basis of two ex parte orders of 7 January 2020, Teoxane had carried out two seizure operations. Vivacy challenged the orders, arguing that the protection of its secrets could only run through the provisional sequestration organised by the statutory texts, and not through other arrangements left to the bailiff's discretion.

The Commercial Chamber agreed on the method: on the combined basis of Articles R. 615-2 of the French Intellectual Property Code and R. 153-1 of the French Commercial Code, it held that, in the course of a saisie-contrefaçon, trade secrets can only be protected by the provisional sequestration provided for in the order authorising the seizure (Cass. com., 1 February 2023, No. 21-22.225, published in the bulletin). Sealing improvised by the bailiff, like protection sought after the event, is ruled out.

The practical consequence is twofold. For the applicant, the sequestration must be provided for in the application itself: an order silent on this point weakens the operations. For the seized party, protection is not presumed: it must be requested, it must be substantiated and it is decided within a short period.

The regime: Articles L. 153-1 et seq. and R. 153-1 et seq. of the French Commercial Code

The mechanism stems from Law No. 2018-670 of 30 July 2018 and its implementing Decree No. 2018-1126 of 11 December 2018, which transpose Directive (EU) 2016/943. Articles L. 153-1 et seq. of the French Commercial Code allow the judge to restrict the communication of a document covered by trade secrets : access limited to certain persons, a confidential version held back, a summary for the other parties.

Article R. 153-1 organises the critical phase. The judge ruling on an ex parte application may, of his own motion, order the provisional sequestration of the requested documents. If the judge is not seised of an application to modify or withdraw his order within one month from service of the decision, the provisional sequestration is released and the documents are transmitted to the applicant. The period runs from service, not from the operations: this point is constantly misreported, and it is decisive. Articles R. 153-3 to R. 153-8 then organise the sorting: the judge reviews the documents, alone or assisted by an expert, and decides for each of them between full communication, redacted communication or refusal of communication.

The solution extends beyond patents: the French Supreme Court has applied it to any evidentiary measure ordered on the basis of Article 145 of the French Code of Civil Procedure, which notably covers the saisie conservatoire intended for foreign proceedings. On the other hand, it only covers trade secrets within the meaning of the 2018 law: information protected by a confidentiality agreement or by professional secrecy falls under other regimes.

Sequestration practice before the Paris Judicial Court

Before the Paris Judicial Court, which has exclusive jurisdiction in patent matters, practice has stabilised. Seizure orders now systematically provide for the provisional sequestration of the items collected. The seized party wishing to oppose the release brings withdrawal proceedings within the month; a sorting phase then opens, document by document, in which it must identify precisely what qualifies as a secret: a blanket claim of confidentiality is not enough, each document must be designated, its secrecy substantiated and a graduated treatment proposed.

The sorting most often leads to an intermediate solution: communication of redacted versions, or access reserved to a confidentiality circle comprising the parties' counsel and a limited number of representatives. This phase, long treated as a formality, in fact decides what the applicant will produce at trial: our decision matrix between the French saisie and the UPC saisie draws the strategic consequences.

What case law has added since 2023

First, on the applicant's duty of candour. In a ruling of 6 December 2023, handed down in a trademark saisie-contrefaçon but transposable to all seizures, the Commercial Chamber approved the annulment of seizure reports on the ground that the applicant had refrained from presenting to the judge all the objective facts capable of informing his decision (Cass. com., 6 December 2023, No. 22-11.071). An applicant who conceals elements unfavourable to its case risks the nullity of the operations and compensation of the seized party.

Second, on the release of the sequestration. The Commercial Chamber has held that the judge seised under Articles R. 153-3 et seq. may order the total or partial release of the sequestration measure, including where it was ordered of the court's own motion (Cass. com., 13 November 2025, No. 24-17.250, published in the bulletin). Jurisdiction to unwind the sequestration is thus clarified, and the sorting of documents confirmed as the ground on which protection is won or lost.

This construction fits within the balance intended by Directive (EU) 2016/943: the preservation of secrets must not neutralise the law of evidence, nor must the law of evidence dissolve secrecy. The French mechanism answers that requirement through the sequence of sequestration, sorting and graduated communication, under the judge's control.

The UPC parallel: Rule 196 RoP and confidentiality clubs

Before the Unified Patent Court, the same tension is resolved differently. Rule 196 of the Rules of Procedure allows disclosure of the collected evidence to be reserved to named persons bound by non-disclosure undertakings, the defendant being heard before the Court sets the extent of access. This is the confidentiality club, which the Paris local division implemented in its very first evidence preservation order by referring to Directive (EU) 2016/943.

The difference in timing is strategic. In France, everything is decided within the month following service, on the seized party's initiative; before the UPC, confidentiality is set in the order itself and debated at the review stage. Our analysis of the UPC saisie and evidence preservation regime details this unified side.

Key takeaways

• In the course of a saisie-contrefaçon, the seized party's trade secrets can only be protected by the provisional sequestration provided for in the order (Cass. com., 1 February 2023, No. 21-22.225).
• The one-month period of Article R. 153-1, paragraph 2, of the French Commercial Code runs from service of the decision, not from the seizure operations; absent action, the sequestration is released and the documents transmitted to the applicant.
• The sorting of documents (Articles R. 153-3 to R. 153-8) leads to full, redacted or refused communication, document by document; the judge may order total or partial release, even for a sequestration ordered of the court's own motion (Cass. com., 13 November 2025, No. 24-17.250).
• The applicant is bound by a duty of candour in the statement of facts, on pain of nullity of the operations (Cass. com., 6 December 2023, No. 22-11.071).
• Protection covers only trade secrets within the meaning of the 2018 law, not contractual or professional secrets.
• Before the UPC, the function of the sequestration is performed by the confidentiality clubs of Rule 196 RoP, set in the order itself.

Frequently asked questions

May the judicial officer seal the documents on his own initiative?

No. The protection of trade secrets runs through the provisional sequestration provided for in the order authorising the seizure. Improvised sealing, outside the framework of Articles R. 615-2 of the French Intellectual Property Code and R. 153-1 of the French Commercial Code, is not the legal route of protection.

What must the seized party do to preserve its secrets?

Apply to the judge for the modification or withdrawal of the order within one month from service of the decision, then prepare the sorting: identify each document covered by secrecy, substantiate its qualification and propose a graduated treatment, from a redacted version to a refusal of communication.

Who carries out the sorting of the sequestered documents?

The judge, who may review the documents alone or assisted by an expert, within the framework of Articles R. 153-3 et seq. of the French Commercial Code. He may order the total or partial release of the sequestration, including where it was ordered of the court's own motion.

Does the protection extend to all confidential information?

No. The regime covers only trade secrets within the meaning of Articles L. 151-1 et seq. of the French Commercial Code. Information protected by a confidentiality agreement or by professional secrecy falls under other legal bases, which must be invoked separately.

Defending the sequestration as one defends the trial

A perfectly executed seizure whose sequestration is poorly defended is worth nothing, and a poorly challenged sequestration deprives the applicant of what matters most. Dhenne Avocats prepares saisie-contrefaçonapplications, conducts the operations and the sorting proceedings, and defends the seized party's trade secrets , before the Paris Judicial Court as well as before the UPC. Talk to us.

This article is an original and substantially updated adaptation of an analysis by Matthieu Dhenne first published on Kluwer Patent Blog on March 7, 2023: Saisie-contrefaçon and trade secrets: the French Supreme Court institutes the framework.