Industrial Property Law

Infringements of patent rights, as defined in Articles L. 613-3 to L. 613-6 of the Intellectual Property Code, engage the criminal liability of the perpetrator (Art. L. 615-14 IP Code). Criminal prosecutions had become rare, and had disappeared with the reform initiated by Law No 78-742 of 13 July 1978. The Law of 26 November 1990  reinstated them in order to reinforce the effectiveness of the pat …

Offenses

Infringements of patent rights, as defined in Articles L. 613-3 to L. 613-6 of the Intellectual Property Code, engage the criminal liability of the perpetrator (Art. L. 615-14 IP Code). Criminal prosecutions had become rare, and had disappeared with the reform initiated by Law No 78-742 of 13 July 1978. The Law of 26 November 1990  reinstated them in order to reinforce the effectiveness of the patentee's rights. In order to constitute an offense, the infringer must have acted knowingly. The moral element is not simply knowledge of the existence of the patent, but presupposes actual knowledge of the infringing nature of the disputed object . 

The Intellectual Property Code contains a number of criminal offenses. Such is the case of improperly claiming ownership of a patent or patent application, punishable by a fine of EUR 7,500 (Art. L. 615-12 IP Code). Such a penalty is incurred by an undertaking which uses a patent which has just been filed but not yet granted, in a promotional catalog and on the packaging of the disputed products, and which thus presents its products as patented even though the granting of the title has not yet taken place .

Article L. 615-13 of the Intellectual Property Code makes it an offense to breach the confidentiality of a patent application before publication. This is punished by a fine of EUR 4,500, without prejudice to the more severe penalties laid down for breaches of national security. If the infringement is harmful to national security, a five-year prison sentence may also be imposed.

Articles L. 615-15 and L. 615-16 of the Intellectual Property Code make it an offense to violate the rules governing the jurisdiction of offices for initial international or European filing, as well as the rules governing confidentiality of the invention forming the subject matter of the filing. These offenses are subject to a penalty of EUR 6,000, notwithstanding the more serious penalties applicable to offenses relating to national security. If the offense is detrimental to national security, the offender may also be sentenced to five years' imprisonment.

Finally, in order to protect the interests of public health and improve the sanitary situation in developing countries, Article L. 613-17-2 of the Intellectual Property Code punishes the offense of counterfeiting essential medicines with three years' imprisonment and a fine of up to EUR 300,000. It stipulates that any violation of the prohibition laid down in Article 13 of Regulation No 816/2006 of 17 May 2006  and Article 2 of Regulation No 953/2003 of 26 May 2003  constitutes counterfeiting (Art. L. 613-17-2 IP Code). Article 13 of the 17 May 2006 regulation prohibits the import into the EU, for the purposes of release for free circulation, re-export or placing under a suspensive regime, in a free zone or in a free warehouse, of products manufactured under a compulsory license for the manufacture of pharmaceutical products intended for export to countries with public health problems. The criminal sanction must be waived in the event of re-export to the importing country, if the latter is cited in the application and identified on the packaging and in the documentation associated with the product. This limit applies under the same conditions to products placed under a transit or customs warehousing procedure or in a free zone or free warehouse with a view to re-export to the importing country (Art. 13(2) Regulation No 816/2006). Article 2 of the 26 May 2003 regulation prohibits the import into the EU of tiered-priced products for the purpose of release for free circulation, re-export or placing under suspensive procedures, or in a free zone or a free warehouse, in order to prevent the diverting of certain essential medicines to EU countries. However, the criminal sanction must be waived if the products in question are re-exported to the countries of destination, or if they are placed under a transit or customs warehousing procedure or in a free zone or free warehouse for the purpose of re-export to a country of destination (Art. 2(2) Regulation No 953/2003).

Law No 90-1052 of 26 November 1990 on industrial property, OJ of 28 November 1990.

See e.g. CA Paris, 20 November 1996, PIBD 1997, 628, III, 133 - 628-15-03-97.pdf (inpi.fr).

CA Paris, 30 March 2022, LawLex202300006639JBJ. 

Regulation No 816/2006 of 17 May 2006 on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems, OJEU L 157 of 9 June 2006.

Regulation No 953/2003 of 26 May 2003 to avoid trade diversion into the European Union of certain key medicines, OJEU L 135 of 3 June 2003.

Industrial Property Law

417. Offenses

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417. Offenses

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