FRANCE Law and Practice Contributed by: Céline Bey and Alexis Augustin, Gowling WLG
Injunctive Relief/Provisional Damages Pursuant to Article L.615-3 of the IPC and Article 62 of the UPCA, in the case of a likely infringe- ment, a patentee may request provisional injunc- tions. Permanent injunction Both French law and the UPCA provide that courts may order permanent injunctions against the infringer aimed at prohibiting the continua- tion or the resurgence of the infringement. In France, an injunction is an automatic con- sequence of a decision in which the court has admitted infringement, except: • when the patent has expired at the date of the decision; • when a SEP/FRAND issue prevents any injunction; • when a compulsory licence has been granted; or • when a national defence exploitation is at stake (Article L.615-10, IPC). Injunctions are generally subject to penalties to ensure their enforcement. The UPC is more inclined to adapt injunctions to the specific circumstances of the case. For example, in a decision of 15 November 2024 in Edwards Lifescience v Meril, a case relating to medical devices, the Munich Local Division held that an injunction should not extend to the devices that have already been scheduled for implantation in patients by the date of the deci- sion. Monetary damages Before French civil courts, damages suffered must be repaired in full although punitive dam- ages are prohibited.
Likewise, Article 68 of the UPCA provides that the injured party shall, to the extent possible, be placed in the position it would have been in if no infringement had taken place. For the assessment of damages on the merits, French judges (Article L.615-7, IPC) and panels of the UPC (Article 68, UPCA) have to distinctly consider: • the negative economic consequences suf- fered by the injured party, including lost prof- its, and any other losses incurred; • any unfair profits earned by the infringer, including investment savings regarding the intellectual, material or promotional work; and • where appropriate, elements other than eco- nomic factors, such as the moral prejudice caused to the right-holder by the infringe- ment. Alternatively, the courts may, at the request of the patentee, award a lump sum as damages. The UPCA also provides that where the infringer did not or could not know that it was engaging in the infringing activity, the Court may order the recovery of profits or the payment of compen- sation. It is worth noting a steady increase in the amounts of damages granted by the Paris courts, over the past few years. Most notably, the Paris Judicial Court has granted a provisional amount of EUR28 million for infringement and unfair competition in its decision of 11 Septem- ber 2020 in Eli Lilly and al v Fresenius Kabi. At this stage, no decision has been handed down by the UPC on damages. Indeed, as already mentioned, damages are assessed in
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