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A Comprehensive Analysis of the Patent Invalidation System in France: Legal Framework, Procedural Path, and Practical Strategies
As a representative country of the European civil law system, France's patent invalidation system is based on written law and meets the collaborative requirements of the EU legal framework. Unlike the dual track system of administrative justice in the UK, the patent invalidation procedure in France heavily relies on judicial channels and occupies an important position in the European patent system. This article systematically analyzes the operational logic and practical points of the French patent invalidation system from the perspectives of legal basis, jurisdictional court, procedural rules, and evidence system.
PART .01
Legal basis: Legal grounds for patent invalidity (French Intellectual Property Code CPI, L. 613-25)
According to Article L613-25 of the French Intellectual Property Code (CPI), the circumstances in which a patent can be declared invalid include:
Absolute novelty standard:The technical solution claimed in the patent has been publicly disclosed in any form (including writing, use, exhibition, etc.) prior to the priority date.
Grace period exception:If the public act originates from the applicant or their successor in rights and occurs within 6 months before the application date, it does not constitute prior art (CPI Art. L. 611-13).
From the perspective of 'homme du m é tier' (technical personnel in this field), combined with existing technology, determine whether the invention is obvious.
Case guidance: French courts refer to the "problem solution approach" analysis method of the European Patent Office (EPO).
Invention needs to be able to be manufactured or used in the industrial (including agricultural) field, excluding purely theoretical methods and human therapeutic methods.
The instruction manual should be clear and complete enough to enable technicians to implement the invention without creative labor.
Key case: Cour de Cassation emphasized the requirement for verifiability of drug patent technology effects in Sanofi v. Teva (2019).
The modification of a patent application shall not exceed the scope of the original submitted text (CPI Art. L. 612-12).
For example, inventions involving the commercial use of human embryos (in accordance with the EU Biotechnology Directive).
PART .02
Jurisdiction Court and Procedural Path
First instance court:The Third Chamber (3 ᵉ chambre) of the Paris Grand Court of Justice specializes in hearing patent invalidation cases and centralizes jurisdiction throughout the country.
appeal court:Cour d'Appel de Paris.
court of last instance:The Cour de Cassation, the highest court in France, only reviews issues of legal application.
Prosecution stage:
The plaintiff submits an assignment, stating the reasons for invalidity and legal basis.
The defendant is required to submit a statement of defense (conclusions en d é fense) within 1-3 months.
Evidence exchange:
Both parties shall submit written evidence (existing technical literature, expert reports, etc.).
The court may appoint an expert judge to issue a neutral assessment based on its authority.
Oral debate:
The trial usually lasts for 1-2 days, with lawyers from both sides debating technical facts and legal application.
Judgment and Enforcement:
The court may declare the patent invalid in whole or in part, and the judgment shall be published in the National Industrial Property Gazette.
Single judicial procedure:There is no administrative objection procedure similar to UKIPO in France, and all invalid requests must be sued in court.
Average duration:The first instance procedure takes about 18-24 months, and the appeal procedure takes an additional 12-18 months.
Litigation costs:Usually 50000 to 200000 euros (including lawyer fees and expert fees), and may be higher for complex cases.
PART .03
Connection with the European Patent System
EPO opposition procedure: Within 9 months after the European patent is granted, an opposition can be filed at EPO, and if successful, the patent will automatically become invalid in France.
National invalidation procedure: After the objection period expires, the patent validity must be challenged separately through French courts.
France has ratified the Unified Patent Court Agreement (UPCA), and after the UPC comes into effect, invalidation rulings on European patents will be directly applicable in France.
Transitional rules: Starting from June 2023, rights holders may choose to withdraw from UPC jurisdiction and retain the right to sue in national courts.
PART .04
Rules of Evidence and Burden of Proof
Burden of proof:The invalid requester shall bear the responsibility and provide "sufficient, accurate, and consistent" evidence (CPI Art. L. 613-25).
Evidence type:
Written evidence:Prioritize the use of patent literature, scientific papers, product manuals, etc;
Experimental evidence:It can be proven through repeated experiments that the technology is not feasible;
Expert report:The opinion of the court appointed expert has high probative value.
Secret use defense:If the defendant claims that the existing technology was used in secret, it must be proven that the use actually occurred before the priority date.
PART .05
Invalid consequences and remedies
Initial invalidity: Patent invalidity judgments have retroactive effect and are deemed to have never existed.
Partial invalidity: The court may uphold the validity of certain claims.
Compensation for damages: If a temporary injunction has been enforced before the patent is invalidated, the plaintiff shall compensate the defendant for the losses suffered as a result.
Right to appeal: Those who are dissatisfied with the first instance judgment can appeal to the Paris Court of Appeal, and legal disputes can be brought to the Supreme Court.
PART .06
Practical Strategies and Risk Prevention and Control
Quick Action: Targeting high-risk patents, prioritize launching attacks within the EPO opposition period (9 months).
Counterclaim and cross licensing: filing an invalid counterclaim in infringement litigation increases bargaining power.
Technical breakdown table:Decompose the patent claims into technical features and match them with existing technology item by item.
Expert collaboration:Hire technical experts and a team of lawyers to collaborate and strengthen the logic of the evidence chain.
Cost Cap Agreement:Agree on phased payments with the law firm to reduce financial risks.
Utilize insurance:Intellectual property litigation insurance can cover some legal fees.
