Pierre Véron
Partner
Isabelle Romet
Partner
Thomas Bouvet
Partner
Sabine Agé
Partner
THE desire to achieve a fair balance between patentees and the public domain, the increasing number of international exchanges between European judges and the pressure created by
forum shopping are only some of the numerous factors
stimulating legislators, judges and lawyers to improve
the quality and efficiency of patent litigation in their
jurisdictions. Those who were familiar with French
patent litigation only before 2007 will be surprised by
the significant evolutions and new practices adopted in
subsequent years by French judges, who seek an
efficient and reasonable approach, as shown by the
results of a statistical study performed by the law firm
Véron & Associés on the patent decisions issued by
Paris judges over the period of 2000 to 2009.
ON THE WAY TO FAIR BALANCE, THE FRENCH
APPROACH FOR PATENT LITIGATION
PARIS, CAPITAL OF FRENCH PATENT LITIGATION
Since 1 November 2009, the court of Paris, both in first
instance and in appeal, has exclusive jurisdiction over
patent cases, including for the grant of orders
authorizing the hundreds of saisies performed every
year. In first instance, all the patent cases are handled
by the third chamber of the Tribunal de grande
instance of Paris, which comprises four panels
(“sections”) composed of three judges each and which
handle only intellectual property cases (patents,
trademarks, designs and copyright). In appeal, patent
cases are handled by two panels, each made up of
three judges specializing in intellectual property.
This concentration of patent litigation is praised by all
practitioners. It enhances the quality of patent case
law since all decisions are issued by specialist judges.
period is quite instructive. Infringement litigation
represents 81 of cases, including the few actions
seeking a non-infringement declaration. Employee
invention litigation falls very far behind, representing a
little more than 5 of the litigation, but shows a
significant increase as compared to the 2 rate over
the 1990-1999 period. Decisions handed down in
contractual disputes also total 5 %, followed by
ownership claims ( 4 %). Main actions for patent nullity
lodged independently of any infringement action
represent no more than 3 %. This low percentage
results from the fact that, until now in France, a
counterclaim for invalidity has been as efficient as a
main claim for revocation. The comparison of the
number of new cases every year and of the number of
decisions suggests a settlement rate of about 40 in
first instance.
FRENCH PATENT LITIGATION IN FIGURES
On average, in France, approximately 350 new patent
cases are initiated every year in first instance and 110
appeals are lodged. This volume makes France the
fourth country in the world for patent litigation, after
the United-States, China and Germany (preceding
Japan, Italy, Canada, the United Kingdom, the
Netherlands and Australia).
COMPETITIVE CALENDARS
Ten years ago, first instance proceedings could last up
to three or four years and France seemed to be
increasingly left out of the running by countries such
the United Kingdom, the Netherlands and Germany.
Nowadays, France competes with the quickest
jurisdictions, as shown by several major cases. In the
multijurisdictional case brought by Novartis against
Johnson & Johnson on the grounds of a patent relating
to extended wear contact lenses, the French first
instance decision was issued within 17 months, exactly
like the Dutch first instance decision, and far quicker
than the English and German decisions. However, the
French system remains flexible so that the duration of
proceedings may significantly vary according to the
cases.
PATENT CASE TYPOLOGY
The study of the 1 820 decisions issued by the Tribunal
de grande instance of Paris over the 2000-2009
INTERACTIVE ORAL HEARINGS
Another major change relates to the final oral hearing.
In the past, each lawyer would have delivered a
monologue before the judges who, more often than
not, remained silent. Likely inspired by the European
Patent Office and by certain foreign colleagues, most
French judges now call for interactive debates: they no
longer hesitate to ask numerous questions. It is now
more crucial than ever for lawyers and their clients to
anticipate all questions that may arise over the course
