Industrial Property Law

The invalidation ruling has absolute effect, subject to third-party opposition (Art. L. 613-27 IP Code) . As the annulment has an effect erga omnes , no action may be brought on the basis of a previously and definitively invalidated claim, on pain of inadmissibility. The licensee or transferee, even if not a party to the proceedings, may rely on the invalidation of the patent to obtain the invalid …

Absolute effect

The invalidation ruling has absolute effect, subject to third-party opposition (Art. L. 613-27 IP Code) . As the annulment has an effect erga omnes , no action may be brought on the basis of a previously and definitively invalidated claim, on pain of inadmissibility. The licensee or transferee, even if not a party to the proceedings, may rely on the invalidation of the patent to obtain the invalidation of the license or transfer agreement. A license agreement relating to the disputed patent must be canceled, even if an agreement entered into prior to the patent's invalidation authorized the undertaking in question to continue marketing the products covered by the patent .

However, a judgment invalidating a patent has absolute effect only once it has become res judicata . It is enforceable only from the date of publication in the BOPI of its entry in the national patent register. Furthermore, the absolute effect of res judicata applies only to judgments which annul a patent, and not to those which reject the annulment , which does not imply that they are not subject to the principle of res judicata. In effect, a person who has lost a patent invalidity action for lack of inventive step and novelty cannot bring a new action, even as a counterclaim, invoking the same grounds for invalidity, even if he bases his claim on a more relevant prior use .

Finally, despite its absolute effect, a judgment of invalidity may still be opposed by a third party (Art. L. 613-27 IP Code) who is not a party to the invalidity proceedings and to whom it is prejudicial.

Cass. com. 28 September 2022, LawLex202200011321JBJ, which specifies that the annulment of the patent rights leaves nothing of the title intact and entails the annulment of all acts performed in the context of the infringement action; Cass. com. 28 January 2003, LawLex202200003072JBJ, relating to the cancellation of the license as a consequence of the absolute effect of the patent's invalidity.

Cass. com. 28 January 2003, LawLex202200003072JBJ.

Cass. com., 6 December 2017, LawLex202200002437JBJ.

Cass. com. 5 May 1987, LawLex202200003327JBJ, dismissing the appellant's argument that a Court of Appeal judgment validating an essential feature of the patent has absolute effect.

CA Paris, 9 May 2014, LawLex202300004456JBJ.

Industrial Property Law

368. Absolute effect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

368. Absolute effect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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