FRANCE Law and Practice Contributed by: Céline Bey and Alexis Augustin, Gowling WLG
In this respect, it is noteworthy that, on 13 and 14 June 2023, the Milan Local Division issued two orders (500663/2023 and 500982/2023) author- ising seizures at an international trade fair taking place in Italy. On this occasion, the Milan Local Division considered that the circumstances did not justify the defendants being heard before- hand, given the time constraints (the trade fair ended on 14 June) and the risk that the evidence would no longer be accessible after the end of the trade fair since the defendants were compa- nies based outside the jurisdiction and the items sought might be destroyed or concealed after the trade fair was over. In France as before the UPC, seizures are only valid provided the claimant brings proceedings on the merits within 20 working days or 31 cal- endar days. Bailiff’s Report The patentee may also gather evidence by means of a bailiff’s report. The bailiff takes note of the offer to sale of the litigious products and the purchase by an independent third party. French case law tends to apply strict rules pro- tecting the interests of the person seized and imposes the independence of the bailiff and the purchaser. Information on Distribution Furthermore, Article L.615-5-2 of the IPC (before French courts) and Article 67 of the UPCA (before the UPC) provide for a right of information allow- ing the patentee to request any documents and information necessary to determine the origin and the extent of the distribution networks of the alleged infringing products or processes. Judicial Powers French and UPC judges are also vested with investigative powers and are entitled to issue
injunctions requesting the production of evi- dence against one party, if necessary, under a penalty payment. They may also, at the request of one of the parties, order the production of any document held by a third party provided there is no legitimate impediment. The UPCA also provides in its Article 60(3) that the Court can order the inspection of premises, conducted by a person appointed by the Court. 2.11 Initial Pleading Standards As a preliminary step, the claimant must demon- strate in the writ of summons its legitimate inter- est to sue and, during an infringement action, that the maintenance costs have been paid. Before French courts, several pre-trial hearings are usually set for the filing of submissions and exhibits in reply to the arguments raised by the other party. However, if a claimant has opted for expedited proceedings, all arguments and evi- dence must be gathered when serving the writ and additional claims, or new evidence might not be allowed afterwards. In any event, once the closing order is issued by the court, the par- ties cannot further amend their claims or intro- duce additional arguments or evidence. Only the facts, legal arguments and evidence disclosed in the written submissions and communicated between parties can be discussed during oral pleadings. Before the UPC, infringement actions are brought by lodging a statement of claim which must contain similar information (listed in Rule 13 of the Rules of procedure) to that required before French courts. In this respect, the procedure before the UPC mainly differs from the French one in that, most of the time, each party may file only two state-
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