Industrial Property Law

The patent owner may prohibit the supply or offer to supply of means enabling the reproduction of the product or the use of the patented process (Article L. 613-4, 1 IP Code). These acts constitute autonomous acts of infringement, punishable irrespective of the subsequent use of the invention . 
1) Delivery or offer of delivery in France of means of implementation on French territory 
The supply o …

Delivery or offer to deliver means for implementing the invention

The patent owner may prohibit the supply or offer to supply of means enabling the reproduction of the product or the use of the patented process (Article L. 613-4, 1 IP Code). These acts constitute autonomous acts of infringement, punishable irrespective of the subsequent use of the invention . 

1) Delivery or offer of delivery in France of means of implementation on French territory 

The supply of means presupposes delivery or an offer of delivery in France, as well as implementation of the means delivered or offered for delivery on French territory. Thus, contrary to the solution adopted for the offer of an infringing product, infringement by supply of means is not constituted in the case of an advertisement made in France for an input in the composition of a product patented in France, when it is specified, even by a general statement, that the product is not available there .

2) Delivery or offer of delivery to an unauthorized person 

The patent owner may prohibit delivery or offer of delivery to a person not authorized to exploit the invention . Infringement is not constituted if the recipient is entitled to exploit the invention, notably because he is a co-owner or has a license or right of prior personal possession. However, a person is not considered entitled to exploit the invention simply because he performs acts excluded from the scope of patent protection by virtue of paragraphs a), b) and c) of Article L. 613-5 of the Intellectual Property Code (Article L. 613-4, 3 IP Code) . Thus, the person making the delivery or offer of delivery is thereby liable vis-à-vis the proprietor of the patent, even if the person acquiring the invention legitimately exploits it within the scope of this exception.

3) Delivery or offer of delivery of means relating to an essential element of the invention 

The prohibited delivery or offer of delivery must concern a means which relates to an essential element of the invention . When the invention consists of a combination of means, this means may consist of a consumer item . Furthermore, it need not relate to an essential element of the combination taken as a whole, but may consist of only one of the combined elements . 

By way of exception, in accordance with Article L. 613-4, 2 of the Intellectual Property Code, the provisions prohibiting the supply or offer of supply of means are not applicable when the means of implementation are products which are commonly found in the marketplace, unless the supplier induces the recipient to commit acts prohibited by Article L. 613-3 of the same code.

4) Supplier's knowledge of the suitability and intended purpose of the means for implementing the invention 

Finally, the supplier of the means must know that the means delivered or offered for delivery are suitable and intended for the implementation of the patented invention. The circumstances may also make this implementation apparent. The supplier's knowledge may be inferred from the instructions, or even recommendations, made to customers. This is the case, for example, when the product's sales brochure refers to the possibility of equipping it with other products and making use of the patented invention without being authorized to do so . On the other hand, infringement by supply of means is reprehensible independently of any knowledge of the cause, i.e. knowledge by the supplier of such means of the existence of the patent .

CA Paris, 14 April 2015, LawLex202300001398JBJ, which found infringement by the supply of means where the customers targeted by the delivery offer were not entitled to exploit the invention.

CA Paris, 19 January 2000, PIBD 2000, n° 700, III, 303: in this case, the offending billboard stated that synthetic intermediates were not available for sale in countries where valid patents existed. 

See in particular. Cass. com, 27 June 2018, LawLex202300001401JBJ, which dismissed the appeal against CA Paris, 17 May 2016, LawLex202300001399JBJ, for delivery of means to customers not entitled to exploit the patent. 

CA Paris, 14 April 2015, LawLex202300001521JBJ, relating to a windshield wiper blade connector reproducing an assembly component of the patented invention, characterized by the courts as constitutive elements of the invention; Cass. com. 28 April 2004, LawLex202300001403JBJ, which held that if the patent relates to a programming device, the offer of convectors suitable for receiving this device does not constitute a supply of means relating to an essential element of the invention. 

Cass. com., 8 June 2017, LawLex202300001402JBJ, relating to a roller, an essential element of a toilet paper dispenser. 

Cass. com., June 8, 2017, 15-29.378, LawLex202300001402JB, which criticizes the Court of Appeal for dismissing the infringement on the grounds that the means relating to an essential element of the patented invention cannot consist in only one of the combined elements, only the arrangement of the means cooperating with each other with a view to a common result being protected. 

Cas. com., 27 June 2018, LawLex202300001401JBJ

CA Paris, 22 May 2013, LawLex202300001396JBJ.

Industrial Property Law

310. Delivery or offer to deliver means for implementing the invention

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

310. Delivery or offer to deliver means for implementing the invention

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise