FRANCE Law and Practice Contributed by: Céline Bey and Alexis Augustin, Gowling WLG
2.7 Interim Injunctions Article L.615-3 of the IPC allows any person with standing to bring an infringement action. This includes the right to request, either ex parte or inter partes, any preliminary relief to prevent imminent infringement or to stop infringement by the alleged infringer or its intermediaries. Provisional measures are usually granted where: • the patent is likely to be found valid and infringed; • there is a significant risk of damage for the patentee resulting from the infringement; and • the interim injunctions requested are strictly proportionate. It has been found that requests to prohibit the sale of alleged infringing products and their withdrawal from distribution channels are dis- proportionate since the patent invoked was due to expire in the following weeks and was not being operated (Paris Court of First Instance, 20 January 2020). While in 2022 the President of the Paris Court of First Instance had, for the first time in France, declared an application for interim injunctions grounded on a European patent application admissible (Paris Court of First Instance, 3 June 2022), this decision has been overturned on appeal (Paris Court of appeal, 22 March 2023). Unlike before the UPC, before the French courts no urgency is required for provisional measures to be granted. Indeed, Article 62 UPCA provides that the UPC may order provisional measures, including pre- liminary injunctions, to prevent or stop infringe- ment. The UPC verifies that:
• the patent is prima facie valid and infringed, meaning that it verifies that it is at least more likely than not that the applicant is entitled to initiate proceedings and that the patent is valid and infringed (UPC Court of Appeal, 26 February 2024); • there is an urgency in ordering provisional measures; and • such measures are proportionate. Regarding the condition of urgency, the appli- cant is expected to be diligent in seeking a rem- edy against the alleged infringer, and therefore to bring an application for provisional measures within a reasonable timeframe from the moment the infringement began or from the time the appli- cant became aware of it. The UPC assesses this condition by taking into account all the factual circumstances of the case. As such, the Court considers a two- and three- month timeframe as reasonable because, in the absence of the publication of the patent, or because tests that were necessary to assess the patent’s infringe- ment had to be carried out, an application for provisional measures could not reasonably be lodged (Munich Local Division, 27 August 2024, Scandit AG v Hand Held Products, Inc.; Düssel- dorf Local Division, 31 October 2024, Magma v Valeo Electrification). In the absence of particular factual circumstances, one month from the com- mencement of the infringement was considered a reasonable timeframe (Düsseldorf Local Divi- sion, 11 December 2023, Ortovox v Mammut Sports). To this day, no application for provisional meas- ures has been dismissed based on the balance of interest. However, the UPC has tailored pro- visional injunctions considering the need to pre- serve a balance of interests. In this respect, in Valeo v Magna, the Düsseldorf Local Division ordered a preliminary injunction but tailored it,
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