Industrial Property Law

Intellectual property infringement, which is a legal act, can be proven by any means (Art. L. 615-5, para. 1, IP Code). The burden of proof lies with the plaintiff in the infringement action  as the court is not obliged to establish, ex officio, the reproduction of the characteristic elements of the patent . However, if the alleged infringer does not contest the facts of the case, the infringement …

Rules of evidence

Intellectual property infringement, which is a legal act, can be proven by any means (Art. L. 615-5, para. 1, IP Code). The burden of proof lies with the plaintiff in the infringement action  as the court is not obliged to establish, ex officio, the reproduction of the characteristic elements of the patent . However, if the alleged infringer does not contest the facts of the case, the infringement is characterized .

To establish proof of infringement, the plaintiff may, independently of any judicial authorization, resort to investigative measures. In particular, this may involve calling witnesses or resorting to an amicable expert appraisal or a report by a “judicial commissioner” (court enforcement officer). The latter, which includes the purchase report, must be purely material, exclusive of any opinion on the de facto or de jure consequences that may result from it , and in conformity with the principle of the right to a fair trial and the rules that evidence must be collected fairly. Its validity is not subject to any judicial authorization or prior disclosure to the alleged infringer. If authorized by an order on ex parte application, the commissioner may, without exceeding his or her authority, call in the assistance of an expert witness .

Article L. 615-5-1 of the Intellectual Property Code, introduced by the Law of 18 December 1996 in application of the WTO Agreement, completes the system of proof of infringement by establishing a simple presumption in favor of a patent covering a process for obtaining a product. Under this presumption, any identical product manufactured without the consent of the patent owner is presumed to have been obtained by the patented process, unless the defendant can establish the difference between the patented process and the process used. The presumption applies only when the product obtained by the patented process is new, or when there is a strong probability that the identical product was obtained by the patented process but the patent owner has not been able, despite reasonable efforts, to determine which process was in fact used (Art. L. 615-5-1, a) and b) IP Code).

CA Paris, Pôle 5 ch. 2, 13 April 2012, LawLex202300004645JBJ; Cass. com. 26 February 2002, LawLex202300002572JBJ.

Cass. com., 26 February 2002, LawLex202300002572JBJ.

CA Paris, 10 January 2014, LawLex201400000019JBJ, finding infringement where the alleged infringer merely seeks a reduction in the damages claimed.

Ordinance No 2016-728 of 2 June 2016, relating to the status of commissaire de justice (court enforcement officer, OJ of 3 June 2016), Art. 1.

CA Paris, 18 May 2005, LawLex200500009065JBJ, specifying that the commissioner must differentiate between the technical description as dictated by the expert, after verification of the data, and his or her personal observations in the report.

Industrial Property Law

394. Rules of evidence

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

394. Rules of evidence

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise