FRANCE Law and Practice Contributed by: Céline Bey and Alexis Augustin, Gowling WLG
In France, the Commercial Code provides a spe- cific form of protection for trade secrets, which is of interest in patent litigation, both for the claim- ant and the defendant. In the context of an infringement seizure, Article R.615-2 of the IPC provides that the judge, either ex officio or at the request of the defendant, may sequester seized documents in order to preserve their confidentiality. During the course of the proceedings, the judge may also implement procedures to preserve the confidentiality of the evidence exchanged (Arti- cle L.151-1 et seq, French Commercial Code). The judge may examine the document individu- ally, seek the opinion of the parties, and then decide to limit the disclosure of the document by way of a summary or restrict the access to cer- tain persons (in a so-called confidentiality club). The UPCA also provides, in a similar way to French law, that confidential information shall be protected. In cases of patent infringement, first instance proceedings before French courts usually take two to three years. A series of pre-trial hearing take place during which each party files submis- sions and communicates evidence. A final pleading hearing, during which each party’s counsel makes their arguments, takes place after the closure of the written proceed- ings. The first instance court decision is usually issued within one or two months following the pleadings and usually provides a ruling on the infringement and the remedies at the same time. The aim of the UPCA is for first instance deci- sions on the merits regarding validity and infringement to be handed down within one year
from the date of filing of the case (remedies are generally assessed in separate proceedings). As of now, the average duration of proceedings on the merits is 13 months. However, due to a large workload, a German local division recently took up to 18 months to hand down some decisions. 5.2 Decision-Makers Although patent litigation is handled by specific chambers of the Paris Court, with exclusive juris- diction over patent-related matters (as detailed in 2.3 Courts With Jurisdiction ), the judges do not have a technical background and no jury system exists. There is no jury before the UPC either. The local and regional divisions consist of legally qualified judges, with no technical background. However, during an action before a local/regional division, the Court can request the President of the first instance court to appoint a technically qualified judge with background in the technical field of the patent (Article 8(5), UPCA). The panels of the central division and of the Court of Appeal are a combination of legally and technically qualified judges. 5.3 Settling the Case Settlements in the course of French patent infringement proceedings are common. The pat- entee can try to settle the case amicably through a settlement agreement or through other forms of alternative dispute resolution (ADR) tech- niques (see 9.1 Type of Actions for Intellectual Property ). Over the last year in France, approxi- mately 50% of patent infringement cases were settled prior to trial. It should be noted that the judge may recom- mend, at any time during the proceedings, a conciliation or mediation measure to the parties,
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