In conjunction with an event organized with Unifab (Union of Manufacturers for the International Protection of Intellectual Property), French law firm De Gaulle Fleurance & Associés unveiled the results of its Litipat barometer relying on the analysis of more than 200 decisions ruled since 2017 in the field of patents by French courts, both at first instance and on appeal. The major findings are as follows.
As far as the preparation of the infringement action is concerned, igures confirm both the interest of practitioners in this probatory tool specifically developed in France, which is the seizure for infringement, but also the efficiency of the latter, since it is used in 86% of the cases, and that the seizure reports are cancelled (when they are contested by the defendants) only in 27% of the cases in first instance, and 37% in appeal.
Furthermore, contributions resulting from the French law of July 30, 2018 relating to business secrecy protection are starting to become noticeable, since an analysis of the decisions rendered concerning seizures against infringement carried out since its enactment reveals that business secrecy is increasingly invoked and regularly leads to the constitution of confidentiality circles.
The Litipat barometer results show that at the stage of the introduction of the action before the Court, the majority of patent proceedings in France concerns European patents rather than French patents (in more than 70% of the cases on the merits, and 85% of the cases within the framework of provisional or conservatory measures or before the Pre-Trial juge). In the years to come, it will be interesting to follow the evolution of this distribution once the unitary patent system will effectively be implemented.
Further, they illustrate, in terms of the nationality of the plaintiffs, a significant disparity between the stage of the first instance and the stage of the appeal, since there is a greater presence of foreign plaintiffs in the first instance than on appeal.
The results of the infringement actions, which last on average 35 months in first instance and 23 months in appeal, can be welcomed by the patent owners, who can be pleased with the moderate effectiveness of the traditional defense argument consisting, for the defendants, in contesting the validity of the patents which are opposed to them, since 62% of the contested patents are judged valid.
Infringement is recognized in 31% of the cases, and 80% of the judgments are confirmed on appeal (it being noted, however, that the appeal procedure remains interesting to try to have the damages reassessed).
The survey also provides figures on the amount of the judgments, and on the amount of the sums awarded by the courts under article 700 of the Code of civil procedure for legal costs. It thus appears that the average amount of court sentences for patent infringement is clearly higher in first instance (€611,000) than in appeal (€228,000), and that the average amount of the costs that the losing party is condemned to pay back to the other party in first instance is equal to €91,000.
“In a nutshell, this first edition of the Litipat barometer shows that patent litigation is efficient in France, thanks to its unique probatory tools such as infringement seizure or bailiff’s report, which often are less expensive than in other countries. It also shows that a detailed case law analysis, resulting in the Litipat barometer, allows us to overcome certain preconceived ideas about this type of litigation, and thus constitutes a strategic decision-making tool”, concludes Francine Le Péchon-Joubert, partner at De Gaulle Fleurance & Associés.
“Publishing a barometer offers a new tool, more than certainly useful, to rights holders who will now have a benchmark, with numerical data to argue in their legal actions “, explains Delphine Sarfati-Sobreira, General Manager of Unifab. “This edition, I am sure, will be the first of many!”