Industrial Property Law

Article L. 613-5 of the Intellectual Property Code lists a series of acts which do not fall under the classification of infringement, even if they are carried out without the consent of the patent owner. 
As in the case of designs (dessins et modèles) (Article L. 513-6, 1° IP Code), actions carried out privately and for non-commercial purposes are excluded from the scope of rights conferred by the …

Article L. 613-5 exceptions

Article L. 613-5 of the Intellectual Property Code lists a series of acts which do not fall under the classification of infringement, even if they are carried out without the consent of the patent owner. 

As in the case of designs (dessins et modèles) (Article L. 513-6, 1° IP Code), actions carried out privately and for non-commercial purposes are excluded from the scope of rights conferred by the patent (Article L. 613-5, a) IP Code). This provision, which refers to acts performed in the private sphere, can no longer be invoked once the user of the invention has disclosed it .

The rights conferred by a patent also preclude the proprietor from opposing acts performed on an experimental basis which relate to the subject matter of the patented invention (Article L. 613-5, b) IP Code). The primary aim of this exception is to encourage freedom of academic research, and consequently scientific progress. It allows the owner of the invention to use it to verify its technical merit or to make improvements  including in a professional context and/or for indirect commercial purposes, provided there is no “commercial act” . This definition is to be interpreted strictly  as covering only those acts of exploiting products or implementing processes which do not lead directly or in the short term to an offer to a potential customer. The same applies to acts carried out as part of a research program with the ultimate aim of developing drugs, whose commercial purpose is still a considerable way off, even if such acts are presented in support of requests for funding or the search for partnerships . On the other hand, the provision of a protected device to an undertaking for the purpose of fine-tuning, which is merely a potential improvement to satisfy the customer and not a material test of the product , or the presentation of a device at a professional trade show when no research work, experimental trials or scientific tests have been carried out , do have a commercial purpose and are therefore subject to authorization by the patent owner.

Similarly, the rights afforded by patent protection does not extend to the preparation of medicines extemporaneously and by the unit in pharmacies, on medical prescription , nor to acts concerning medicines prepared in this way (Article L. 613-5, c) IP Code), studies and tests required to obtain marketing authorization for a drug, acts necessary to implement these studies and tests and to obtain authorization (Art. L. 613-5, d) IP Code)  and acts necessary to obtain the advertising visa referred to in Article L. 5122-9 of the Public Health Code (Art. L. 613-5, d) IP Code). 

Lastly, objects intended to be launched into outer space introduced into French territory are not covered by patent protection (Article L. 613-5, e) IP Code).

Cass. com., 5 July 2017, LawLex202200002690J, which denied the private use defense on the grounds that the undertaking in question had presented the invention, incorporated into a prototype at a professional trade show, and also on an internet site that could be consulted in France. 

CA Paris, 7 October 2005, LawLex202300001746JBJ.

CA Paris, 11 February 2022, LawLex202200009462JBJ.

CA Paris, 7 October 2005, LawLex202300001746JBJ; TJ Paris, 11 February 2022, LawLex202200009462JBJ. 

Cass. com, 5 July 2017, LawLex202200002690JB.

For a definition of a dispenser's preparation, see Art. L. 5121-1, 1°, Public Health Code. 

Industrial Property Law

312. Article L. 613-5 exceptions

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312. Article L. 613-5 exceptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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