French patent judges: “We’re conducting patent proceedings faster than ever before”

JUVE Patent: Since the beginning of the Covid-19 pandemic, participating in hearings has been more difficult for the interested public. In addition, the French courts’ rulings on patent proceedings can still not be found in an online database as planned. What is your view on the problems companies and lawyers have keeping up to date with current French case law?
Carine Gillet: The public regained access to the hearings after the end of the first lockdown, in September, and it shall remain accessible even if a new lockdown is decided. We would very much like to publish all our rulings, but unfortunately the situation has not changed since last year. We are only allowed to give the rulings to the parties themselves.

Nathalie Sabotier

Nathalie Sabotier: All rulings are going to be published in a central database under the control of the Cour de Cassation. But before this, each individual decision must first be anonymised. This takes time.

The INPI is simultaneously publishing some rulings on infringement proceedings. Will this create more transparency?
Sabotier: I don’t know exactly which decisions the INPI will publish. There is no official collaboration. Presumably, the INPI gets the rulings from the parties.

After the first coronavirus lockdown, the Tribunal judiciaire de Paris changed the organisation of first-instance proceedings for patent cases. What measures were taken? 
Gillet: During the first lockdown in France, which lasted from mid March to mid May, our chamber was among those no longer allowed to hold oral hearings. From 11 May to the end of June 2020, we were only able to conduct some hearings by videoconference. After that, we went back to normal . And of course, we went on to rule on cases, but only in written form.

Sabotier: In exceptional cases, proceedings may also be heard in writing only. But this doesn’t work for patent cases, as it is important for the lawyers to explain, and it is more practical to receive, technical information orally.

Does the French court still have a case backlog?
Sabotier: No. The court is faster now than ever before. During the lockdown, we received all the documents from the lawyers and went ahead with the written part of the proceedings. Since we were just sat at our desks all day, we could catch up quickly once the courts reopened. We clarified organisational matters with the lawyers by phone or WhatsApp.

Gillet: Currently, after submitting a patent case, it takes 18 months to two years for the case to be heard. After the hearing, we present our verdict within two months.

How will the court deal with proceedings involving multiple parties, for example the Intellectual Ventures suit?
Gillet: Unlike courts in many other European countries, we are conducting normal oral hearings again in which all parties take part in person.

Sabotier: All those present must wear a mask during the entire hearing, including the lawyers while they are arguing the case. In addition, the distancing rules must be observed. Public access is therefore also limited in terms of the number of people, but in principle hearings are still open to the public.

Currently video conference, or hybrid, hearings are common at the EPO and in the UK. What possibilities do you see for French courts?
Gillet: We too have created the technical means to conduct hearings by video conference. In our model, the judges sit together in the courtroom and the lawyers connect by video to argue their case from their office.

Sabotier: We tried out these video hearings a few times. But neither we, nor the lawyers, have much experience with them. Our experience so far shows that lawyers can present their documents by video, and we can see and hear them well. But this type of hearing still causes a lot of uncertainty for many lawyers.

Gillet: We can therefore introduce video hearings at any time, if necessary.

Sabotier: But lawyers currently still have reservations and prefer to come to the hearing in person.

In patent proceedings, fundamental questions often arise, for example on jurisdiction or secrecy. These must be resolved before the main hearing, which can mean a delay in the main hearing. Do you have any plans to change this practice, which some lawyers brand as a delaying tactic by the opposition?
Gillet: Civil proceedings were reformed in 2019 in order to accelerate the process. However, there are concerns about the handling of cases at the Court of Appeal. In case the second instance court does not have the means to deal swiftly with appeals against court orders by the magistrate, the reform could have the reverse effect and actually slow down proceedings. Currently, there is no legal way for the court to speed up proceedings. Perhaps we need a different method of dealing with these tactics by the parties.

Recently, the validity of the patent was heard separately from the question of infringement in some proceedings. Is there an advantage in splitting the individual issues?
Gillet: No. Our tradition in France is still to hear the validity and infringement of a patent together. In individual cases, we bring forward individual legal issues to save time and reduce costs for the parties. In exceptional cases, such separation is not forbidden.

Sabotier: For example, we had a patent dispute over the hormone preparation Levothyrox. The manufacturer Merck had changed its formula and applied for a patent for the product again. Around 100 patients with thyroid problems filed suit against this for insufficiency of disclosure, lack of novelty and lack of inventive step. In this case, we decided in advance whether the claimants had a legitimate interest.

Gillet: These advance decisions are a good way to reduce the parties’ costs if the proceedings can be decided on one issue.

JUVE Patent has heard that parties have filed many new patent suits in recent weeks. How do the case numbers compare to last year?
Gillet: We haven’t yet compiled any statistics. During the two months of the lockdown in spring 2020, no new proceedings could get underway. On the other hand, in November and December, parties filed a large number of suits. This is no doubt because the claimants were delayed in filing their cases. But it also shows claimants’ growing interest in conducting patent proceedings in France.

The interview was conducted by Konstanze Richter and Christina Schulze.