On January 1 2012 the Third Chamber of the First Instance Court of Paris, which has exclusive national jurisdiction over patent litigation, began accepting for the first time the filing of documents that are similar to the 'protective letter'.

A potential infringer now has the opportunity to provide the presiding judge in advance and ex parte with its defence against a potential infringement. Consequently, the presiding judge is aware of such defence when deciding on any ex parte request later submitted by a patent holder for an infringement seizure or for a preliminary injunction.

The aim is not to prevent infringement seizures or preliminary injunctions systematically, but rather to limit the scope of possible actions requested ex parte by a patent holder against an alleged infringer. This is notably due to the fact that the patent holder will often be a competitor of the alleged infringer.

In practice, filing a protective letter will take the form of an ex parte request to be presented to the presiding judge. The protective letter should include:

  • the name of the person seeking the benefit of the protection;
  • the relevant patent or patent application number;
  • the name of the party which may subsequently request an ex parte order for the seizure of infringing goods or, more exceptionally, an ex parte preliminary injunction; and
  • the circumstances and reasons justifying the moderation of the patent holder's rights.

The procedure for filing a protective letter will be open for an initial period of six months, at which point the relevance of the practice and its fit with civil procedure will be assessed by the court.

For further information on this topic please contact Dominique Ménard or Stanislas Roux-Vaillard at Hogan Lovells International LLP by telephone (+33 1 53 67 47 47), fax (+33 1 53 67 47 48) or email ([email protected] or [email protected]).