FRANCE Law and Practice Contributed by: Céline Bey and Alexis Augustin, Gowling WLG
• inform the defendant about the applica- tion and invite it to lodge an objection to the application; • summon the parties to an oral hearing; • summon the applicant to an oral hearing with- out the presence of the defendant; or • rule on the application without hearing the defendant, and eventually order provisional measures (see Düsseldorf Local Division, 22 June 2023, MyStromer AG v Revolt Zycling AG). 2.9 Special Limitation Provisions Before French civil courts and the UPC, the limitation period for infringement actions is five years from the day on which the patentee knew or should have known that the infringement had occurred. Criminal actions before French courts must be filed within six years of the day on which the offence was committed. Lastly, before the French courts as before the UPC, no limitation periods apply to patent nul- lity actions. 2.10 Mechanisms to Obtain Evidence and Information In France and before the UPC, there is no dis- covery procedure. Therefore, the parties remain free to disclose the evidence of their choice sub- ject to what is set out below. The IPC and UPCA, however, provide mecha- nisms allowing the access to evidence and infor- mation. Infringement Seizure (Saisie-Contrefaçon) In practice, infringement seizure is one of the most widely used and efficient probative meas- ures in France. To perform it, the claimant must
obtain an order from the President of the Paris Court of First Instance by way of an ex parte request precisely specifying the scope of the seizure. The seizure can only be performed by a bailiff, generally alongside an expert or patent attorney. The bailiff may seize samples of infringing goods, and any documents needed for the assessment of the infringement and of the damage suffered. The UPCA provides that, at the request of an applicant who has presented reasonably avail- able evidence to support that the patent is being or is about to be infringed, the UPC may, even before the commencement of the proceedings on the merits, order: • the detailed description, with or without the taking of samples; • the physical seizure of the infringing products, and of the materials and implements used in the production and/or distribution of those products and the documents relating thereto; and • the inspection of the premises. The main difference between the two systems is that, while in France the process for requesting a seizure is ex parte only, the UPCA provides that, unless accepted by the Court, the procedure for obtaining a seizure before the UPC is adversar- ial. To obtain from the UPC that the procedure remains ex parte, the applicant must: • prove that a delay is likely to cause irrepara- ble harm to the applicant; • prove that there is a risk of evidence being destroyed; or • provide any material fact known which might influence the UPC in deciding whether to make an order without hearing the defendant.
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