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Applying for a patent

Patentability

What are the criteria for patentability in your jurisdiction?

The criteria for patentability in Luxembourg include novelty, inventive step and industrial applicability (Articles 6, 8 and 9 of the Law of 20 July 1992.

However, Luxembourg is a non-examining jurisdiction, wherein patent applications proceed to grant irrespective of fulfilling these criteria (Article 41(4) of the Law of 20 July 1992). The onus is placed solely on the applicant to voluntarily amend the case on record to strengthen the presumption of validity of its patent. In this context, a Luxembourg patent application is granted:

  • as a full-term patent (with a duration of 20 years) where its subject matter has been subjected to an official search, either requested at the Luxembourg Patent Office or performed by a foreign office on an equivalent case (eg, the priority case or a later Patent Cooperation Treaty (PCT) case), with the foreign search report filed at the Luxembourg Patent Office by way of a search request; or
  • as a short-term patent (with a duration of six years), where its subject matter has not been subjected to an official search by the time the application is published (on or around 18 months from the filing date or priority date, if one is claimed; Articles 6, 8 and 9).

See Article 35 of the Law of 20 July 1992 (as amended by Article 4 of the Law of 11 August 2001).

However, the above does not apply to European patents subsequently validated in Luxembourg, the patentability criteria for which are set out in the European Patent Convention. Unlike nationally filed Luxembourgish patents, European patents validated in Luxembourg have undergone substantive pre-grant prosecution on the merits before an examining division of the European Patent Office and therefore carry a stronger presumption of inherent validity.

The language of the specification may be English, French, German or Luxembourgish. Where the specification is filed in English, the claims must be translated into French or German and filed within one month of the Luxembourgish filing date.

What are the limits on patentability?

Limits to patentability in Luxembourg are defined as non-patentable inventions and exclusions to patentability (Articles 4 and 5 of the Law of 20 July 1992).

Non-patentable inventions include:

  • discoveries, scientific theories and mathematical methods;
  • aesthetic creations;
  • schemes, rules or methods for performing a mental act, playing a game or doing business, and computer programs; and
  • presentations of information.

However, the above are not patentable subject matter only to the extent that the patent or patent application in question relates to that subject matter as such.

The following are also non-patentable because they lack industrial applicability:

  • methods of treatment of the human or animal body by surgery or therapy; and
  • diagnostic methods practised on the human or animal body.

These exclusions do not apply to an invention consisting of a substance or composition for use in any such methods.

Subject matter excluded from patentability includes:

  • any invention whose commercial exploitation would be contrary to public policy or morality; and
  • plant or animal varieties and biological processes for obtaining them (although this exclusion does not apply to inventions consisting of microbiological processes and their output products).

To what extent can inventions covering software be patented?

In view of the lack of examination during the Luxembourgish application procedure, notionally all software inventions can be patented in the jurisdiction.

However, to achieve a stronger presumption of validity, embodiments of patented software inventions should exhibit a further technical effect, analogously to the legal test practised under the European Patent Convention. In practice, this means a concrete effect achieved by the software beyond the conventional physical interactions between the program and the computer on which it is run. Such an effect may, for instance, manifest itself as:

  • an improvement in the control of an industrial process or the internal functioning of the computer or its interfaces; or
  • an improvement in the efficiency or security of a process, the management of required computer resources or the rate of data transfer in a communication link.

To what extent can inventions covering business methods be patented?

The technical implementation of a business method, typically as a computer-implemented invention, can be patented to the same extent as a software invention in Luxembourg.

In view of the lack of examination during the Luxembourgish application procedure, notionally all (software) inventions covering business methods can be patented in the jurisdiction.

However, to achieve a stronger presumption of validity, embodiments of patented software inventions covering business methods should exhibit a further technical effect, analogously to the legal test practised under the European Patent Convention. In practice, this means a concrete effect achieved by the software implementing the business method logic, beyond the conventional physical interactions between the program and the computer on which it is run. Such an effect may, for instance, manifest itself as:

  • an improvement in the security of an electronic transaction;
  • a reduction in storage, processing or bandwidth requirements; and
  • other efficiency-related aspects of a local or networked electronic process.

To what extent can inventions relating to stem cells be patented?

In view of the lack of examination during the Luxembourgish application procedure, notionally all inventions relating to stem cells can be patented in the jurisdiction.

However, to achieve a stronger presumption of validity, these inventions must comply with the requirements set by the European Patent Convention, the case law of the European Patent Office and judgments of the European Court of Justice (ECJ) on this matter.

In practice, the European Patent Convention forbids the patenting of a claim directed to a human embryonic stem cell culture which at the filing date could be prepared exclusively by a method which necessarily involved the destruction of the humans embryos from which the culture is derived, even if the method is not part of the claim. A later development making the destruction of human embryos unnecessary to carrying out the invention is of no significance. However, human embryos may be excluded by way of a disclaimer, even if the disclaimer has no basis in the application as filed. Moreover, in a preliminary ruling (International Stem Cell Corporation, Case C-364/13) on the patentability of stem cells under the EU Biotechnology Directive (98/44/EC), the ECJ held that parthenogenically derived stem cells are not ‘human embryos’ within the meaning of the directive, as they do not have the inherent capacity to develop into a human being (this being a matter for the national courts to decide). Therefore, a human egg used to produce stem cells but unable to develop into a viable embryo can be patented.

Are there restrictions on any other kinds of invention?

Beyond the subject-matter restrictions mentioned above, there are statutory restrictions on the disclosure and foreign filing of patent applications deemed to contain information whose publication might be prejudicial to national security (Article 38 of the Law of 20 July 1992 ; Articles 4 to 7 of the Law of 8 July 1967).

These restrictions relate solely to the public disclosure of such inventions, which would automatically occur through the statutory publication of Luxembourgish patent applications around 18 months from the earliest of the application’s filing or priority date (Article 33 of the Law of 20 July 1992).

Specific provisions exist in the Luxembourgish patent legislation regarding:

Grace period

Does your jurisdiction have a grace period? If so, how does it work?

A grace period of six months is available under Article 7 of the Law of 20 July 1992 in respect of:

  • any unauthorised disclosure which constitutes an obvious abuse of the applicant or its predecessor in title; or
  • the disclosure of the invention at an official or officially recognised exhibition within the meaning of the Paris Convention of 22 November 1928 (as amended).

There are no explicit provisions in Luxembourgish patent statutes about how to invoke a grace period based on unauthorised disclosure. In practice, a reference to a court decision on the matter, or to proceedings ongoing at the time of filing the Luxembourgish application, may meet the test.

The exhibition of the subject matter at an official or officially recognised exhibition must be declared at the time of filing the Luxembourgish application and supported by a certificate within four months of the filing date (Article 15 of the Grand-Ducal Regulation of 17 November 1997.

Oppositions

What types of patent opposition procedure are available in your jurisdiction?

There is no post-grant opposition procedure in Luxembourg within the meaning of the European Patent Convention. However, there are pre-grant third-party intervention and post-grant invalidation procedures. Under Article 34 of the Law of 20 July 1992, any third party can file a submission contesting the patentability of a Luxembourgish patent application (in view of Articles 4 to 9 Law of 20 July 1992) between the dates of its publication and grant. Such submissions form part of the public record of the patent application once published, but do not bind the Luxembourgish office as to its grant.

Under Article 36 of the Law of 20 July 1992, a third party can file a formal request for a search against an unsearched published application, until the earlier of the applicant filing its own formal request for search or the unsearched application being granted under Article 35 1bis. This procedure is analogous to the patent opinion service provided by the UK Intellectual Property Office regarding the validity of patent claims under Section 74A of the UK Patents Act 1977, inasmuch as the written opinion accompanying the Luxembourgish search report assesses the validity of the claims independently of the applicant (and of the third party, if it requested the search instead of the applicant). Note that in Luxembourg, all patent applications are searched on behalf of the national office by the European Patent Office, which issues a written opinion with its search report and applies the legal tests and standards of European patent practice under the European Patent Convention.

Under Articles 73 and 74 of the Law of 20 July 1992, any party can apply to invalidate a Luxembourgish patent, including after its lapse, on any of the following grounds:

  • The subject matter of the patent lacks novelty, inventive step or industrial applicability, or constitutes non-patentable subject matter;
  • The patent fails to disclose the invention sufficiently clearly and completely for a person skilled in the art to practise it;
  • The subject matter of the patent extends beyond the contents of the application as filed or, where the patent has been granted on the basis of either a divisional application or a new application following entitlement proceedings, extends beyond the contents of the original application as filed;
  • The scope of the protection conferred by the patent has been extended; or
  • The application was not entitled to be granted letters patent.

Under Article 74, nullity proceedings must be brought before the local high court. The relevant high court is selected according to the Luxembourgish address of record for the patentee – either that of Luxembourg City for addresses broadly in the southern half of the country or that of Diekirch for addresses broadly in the northern half of the country.

Apart from oppositions, are there any other ways to challenge a patent outside the courts?

No.

How can patent office decisions be appealed in your jurisdiction?

Under Article 91(1) of the Law of 20 July 1992, all decisions of the Luxembourgish Patent Office must first be appealed to the minister for the economy within three months of the decision.

The minister’s decisions may be appealed to the Contentious Committee of the State Council (Article 91(2)). The State Council is the final-instance jurisdiction for appeal decisions from the minister.

Timescale and costs

How long should an applicant expect to wait before being granted a patent and what level of cost should it budget for?

Patent grant in Luxembourg occurs on completion of all of the relevant formalities, but no earlier than the four-month period provided for amending the application. This amendment period is commenced on receipt of the Luxembourgish search report or the filing of a foreign search report (Article 41 of the Law of 20 July 1992).

On a standard pendency profile, a Luxembourgish patent application would typically proceed to grant shortly after its statutory publication, at 18 months from the earliest of its filing date or priority date (Article 33(1) of the Law of 20 July 1992).

It is possible to bring the date of grant forward by completing all required formalities on filing (including paying all official fees and requesting a search) and subsequently filing a request for anticipated publication, which at the earliest is two months after the Luxembourgish filing date (Article 33(1), Paragraph 2, Law of 20 July 1992).

Instead of requesting a search of the Luxembourgish application at the time of filing, the shortest possible time to grant may be achieved through filing an official (typically foreign) search report that has previously been obtained on the same subject matter as that of the Luxembourgish patent application (typically on a foreign priority case). Where relevant documents are available, this option advantageously removes the procedural latency inherent to the European Patent Office, which carries out patent searches on behalf of the Luxembourgish Patent Office and has a turnaround time of six to nine months from the request date. This option could theoretically result in a grant time of around six to seven months from the filing date.

The following costs apply:

  • Luxembourgish official fees amount to €270 and consist of an official filing fee of €20 and an official search fee of €250 (also applicable when filing search results). An additional official amendment fee of €7 is levied if the specification is voluntarily amended pre-grant. There is no official grant or printing fee. The first official renewal fee payable from the third year is €33.
  • Professional fees for the entire procedure, from filing to report grant with the official grant certificate, range between €1,200 (priority filing, no amendments until grant) and €1,700 (PCT national phase with third-year renewal and late filing of documents). These figures exclude any technical services (eg, preparing the specification and claims in a form suitable for filing, advising on the search report, preparing and filing amendments) and any translations that may be required.

The above is to be contrasted with European patents validated in Luxembourg post-grant. Pursuant to the London Agreement (of which Luxembourg is a signatory), a national Luxembourgish patent corresponding to a granted European patent is effectively granted automatically as of the date of publication of the European grant (see Paragraph 2 of the European Patent Office’s notice about Article 65 of the European Patent Convention). In this particular context, the cost of the Luxembourgish grant is nil, but appointing a Luxembourgish firm as local address for service may incur a small professional fee.

Enforcement through the courts

Strategy

What are the most effective ways for a patent owner to enforce its rights in your jurisdiction?

If the Luxembourgish patent is not a validated European patent, initially the patentee should assess the validity of the patent as required, particularly if equivalent foreign patents that have undergone substantive prosecution have been granted with claims of a narrower scope. Voluntary amendment post-grant is permissible under Article 72 of the Law of 20 July 1992, but only by way of cancelling claims. Claims, passages in the description and figures on record can be cancelled post-grant (and, in exceptional circumstances, replaced) only by way of a nullity action under Articles 73 and 74 of the Law of 20 July 1992.

If the infringement falls within the scope of the patent – whether on record or as amended pursuant to the above due diligence – the next step is to have a law firm serve the infringer with a formal cease and desist request. The request should preferably set out the facts relied on, characterise each infringing act complained of and set out the patentee’s conditions for resolving the matter without the assistance of the court. The request may take the form of a cease and desist notice served on the infringer by a bailiff mandated by the appointed law firm. This step is important in order to cancel out the limitation period of three years running from the date of the last infringing act (Article 82 of the Law of 20 July 1992).

The relevance of statutory principles to the facts of the case must be carefully assessed at this stage – for example, where a patent relates to a process for obtaining a product, under Article 80bis of the Law of 20 July 1992 a Luxembourgish court can order the defendant (infringer) to prove that its process is different from the patented process, with an explicit presumption of liability for infringement if the defendant cannot discharge this burden. Such principles can constitute vital leverage in a pre-litigation context, so as to encourage infringers towards early settlement.

Subject to the infringer’s engagement with the request, the patentee’s patent rights could therefore be enforced through contractual settlement terms and the infringer’s strict adherence to them.

Alternatively, court proceedings should be contemplated, including preliminary (interim) injunctions.

What scope is there for forum selection?

The scope for forum selection within Luxembourg is limited, due to the diminutive size of the country and statutory attributions of jurisdictional competence.

Infringement actions must be brought before the court with exclusive jurisdiction, as per Articles 1 and 80(1) of the Law of 20 July 1992. The relevant court is selected according to the Luxembourgish address of the main defendant or the Luxembourgish address at which the infringing act occurred, at the claimant’s election as per Article 42 of the New Civil Procedure Code.

Any action (or countersuit) for revocation must be brought before the relevant court according to the patentee’s Luxembourgish address of record (Article 74(1) of the Law of 20 July 1992).

Accordingly, the relevant court will be either that of Luxembourg City for addresses located in the southern half of country or that of Diekirch for addresses located in the northern half of country. Theoretically, an infringement action against a defendant located in northern Luxembourg could be heard by the Diekirch Court while a countersuit for revocation of the patent could be heard by the Luxembourg City Court if the patentee has an address for service in Luxembourg City (there is no precedent for jurisdictional consolidation for practical purposes).

All appeals from the two courts of first instance are heard by the Court of Appeal. Decisions of the Court of Appeal are appealable – only on points of law – to the Supreme Court (Articles 21 to 23 of the New Civil Procedure Code; Article 74(4) of the Law of 20 July 1992, specifically as regards revocation proceedings).

Pre-trial

What are the stages in the litigation process leading up to a full trial?

In Luxembourg, any action for infringement is proscribed for three years after the date of the last infringing act, as per Article 82 of the Law of 20 July 1992. This limitation period is interrupted by any cease and desist communication served on the infringer by a bailiff or by any claim for infringement served on the infringer.

Accordingly, the first stage after appointing a solicitor firm should be to serve the infringer with a cease and desist communication through a bailiff, along with a response deadline. The claim for infringement should be lodged with the court and served on the infringer shortly after the response deadline, if it is not observed by the infringer.

Formal or informal mediation may be attempted before or after serving this notice, but all information exchanged between the parties in the specific context of mediation is strictly without prejudice under Article 1251-6 of the New Code of Civil Procedure.

Interim remedies, including goods seizures and interim injunctions, are available under Article 79 of the Law of 20 July 1992. The basic measures to take before a full trial are as follows:

  • to have one or more sworn court-appointed experts examine the (alleged) infringing products and means used to enable the infringement (Paragraph (1)); and
  • to have the infringing goods seized at the time (Paragraph (2)).

Both measures are available on a simple request.

A full trial follows, but may be counterbalanced by the defendant challenging the validity of the patent in a nullity countersuit under Articles 74 and 80(3) of the Law of 20 July 1992.

How easy is it for defendants to delay proceedings and how can plaintiffs prevent them from doing so?

Given the lack of substantive examination during the Luxembourg patent procedure, and its deleterious effect on the presumption of validity inherent to a national patent (as opposed to a European patent examined by the European Patent Office and validated in Luxembourg), an appropriate method of delay would be a countersuit in nullity by the defendant under Articles 74 and 80(3) of the Law of 20 July 1992.

However, the delay would be borne from the increase in matters to be heard, since the court hears and decides on the defendant’s countersuit alongside the claimant’s suit (Article 24 of the New Civil Procedure Code). That is, a countersuit does not have a suspensive effect on the infringement action.

The risks and delays associated with a countersuit in nullity can be mitigated by assessing and, as the case may require, reinforcing the validity of the patent before initiating proceedings. If the Luxembourgish patent is not a validated European patent, then initially the patentee should assess the validity of the patent as required, particularly if equivalent foreign patents that have undergone substantive prosecution have been granted with claims of a narrower scope. Voluntary amendment post-grant is permissible under Article 72 of the Law of 20 July 1992, but only by way of cancelling claims. Claims, passages in the description and figures on record can be cancelled post-grant (and, in exceptional circumstances, replaced) only within the context of an action in nullity under Articles 73 and 74 of the Law of 20 July 1992.

How might a party challenge the validity of a patent through the courts in anticipation of a potential suit for infringement being issued against it?

Any party can issue proceedings for revocation of a Luxembourgish patent under Articles 73 and 74 of the Law of 20 July 1992, including after its lapse, on any of the following grounds:

  • the subject matter of the patent lacks novelty, inventive step or industrial applicability, or constitutes non-patentable subject matter (Articles 4 to 9 of the Law of 20 July 1992);
  • the patent fails to disclose the invention sufficiently clearly and completely for a person skilled in the art to practise it;
  • the subject matter of the patent extends beyond the contents of the application as filed or, where the patent has been granted on the basis of either a divisional application or a new application following entitlement proceedings, extends beyond the contents of the original application as filed;
  • the scope of protection conferred by the patent has been extended; or
  • the application was not entitled to be granted letters patent on the application.

Under Article 74, proceedings in nullity must be brought before the local high court. The relevant high court is determined according to the patentee’s Luxembourgish address of record, being either that of Luxembourg for addresses broadly in the southern half of the country or that of Diekirch for addresses broadly in the northern half of the country.

At trial

What level of expertise can a patent owner expect from the courts?

The technical and IP expertise of the Luxembourgish courts is virtually non-existent, largely due to the following factors:

  • the diminutive size of the country;
  • the mainly services-based nature of the national economy;
  • the assignation of infringement proceedings to the jurisdiction of the local high court, which has a generalist remit, and the lack of specialist IP or technical courts; and
  • the fact that (to our best knowledge) a patent infringement action has never been fully litigated to a decision in Luxembourg.

However, Luxembourgish courts can be expected to draw heavily on French and German decisions (due to geographical and legal proximity), as well as the jurisprudence of the European Patent Office – thus lending a degree of predictability to how legal tests and questions are likely to be interpreted by local judges.

Moreover, the domicile of the forthcoming Unified Patent Court of Appeal in Luxembourg is expected to positively influence legal practice in this area over the short to medium term.

Are cases decided by one judge, a panel of judges or a jury?

Infringement and revocation cases at first instance before the local high court are heard and decided by a panel of three judges.

Appeals of first-instance decisions before the Court of Appeal are heard and decided by a panel of three judges.

Higher appeals on points of law before the Supreme Court are heard by a panel of five judges.

No juries are involved in civil cases (eg, those relating to patent enforcement or revocation).

If jury trials do exist, what is the process for deciding whether a case should be put to a jury?

Not applicable.

What role can and do expert witnesses play in proceedings?

The use of expert witnesses by the court is governed by Articles 461 to 480 of the New Civil Procedure Code.

Does your jurisdiction apply a doctrine of equivalents and, if so, how?

The fact that a patent infringement action has never been fully litigated to a decision in Luxembourg renders this question difficult to answer with any degree of certainty.

Luxembourgish courts can be expected to draw heavily on French and German decisions (due to geographical and legal proximity), as well as the jurisprudence of the European Patent Office – thus lending at least some predictability to how a doctrine of equivalents may be considered by local judges.

According to current German patent practice, in two recent decisions (Pemetrexed (GRUR 2016, 921) and V-förmige Führungsanordnung (GRUR 2016, 1254)) the German Federal Court of Justice affirmed its established case law under which embodiments that are disclosed in the patent, but not claimed, are excluded from the scope of protection under the doctrine of equivalents; the court also clarified the cases in which such a selection decision can be assumed to restrict the scope of protection under the doctrine of equivalents.

According to current French patent practice, a patent is deemed to have been infringed where a different means is used to perform the same function in order to reach an identical or similar result. That function is defined as the first technical effect produced by the execution of the claimed means, whereas the result is constituted by the practical advantages achieved by the invention. French jurisprudence has consistently stated that, when the function of a particular claimed means was not known in the prior art and an alleged infringing means of a different form performs the same function, there is infringement by equivalence. Conversely, there is no infringement by equivalence if the function of the claimed means is not new, in which case the scope of protection should be limited to the claimed means.

Is it possible to obtain preliminary injunctions? If so, under what circumstances?

Yes, interim remedies – inclusive of goods seizures and interim injunctions – are available under Article 79 of the Law of 20 July 1992.

The basic measures to take prior to full trial are:

  • to have one or more sworn court-appointed experts examine the (alleged) infringing products and means used to enable the infringement (Paragraph (1)); and
  • to have the infringing goods seized at the time (Paragraph (2)).

Both measures are available on a simple request to the president of the relevant local high court. Such requests are appealable by the alleged infringer and provisions to indemnify the alleged infringer may be ordered where interim measures fail to be vindicated by a finding of infringement (as per Article 79(4) of the Law of 20 July 1992).

How are issues around infringement and validity treated in your jurisdiction?

Jointly – a defendant’s countersuit for revocation of the patent relied on in the infringement claim is heard and decided by the court together with the claimant’s claim (Article 24 of the New Civil Procedure Code).

Will courts consider decisions in cases involving similar issues from other jurisdictions?

The fact that a patent infringement action has never been fully litigated to a decision in Luxembourg, and Luxembourg’s long-time membership of the European Patent Convention, strongly suggest that Luxembourg courts would indeed consider decisions of the French, German and Belgian courts, as well as the jurisprudence of the European Patent Office Boards of Appeal.

Damages and remedies

Can the successful party obtain costs from the losing party?

Yes, per Articles 213, 238 and 240 of the New Civil Procedure Code. However, costs may not necessarily be awarded at indemnity level.

What are the typical remedies granted to a successful plaintiff?

Typical remedies include:

  • a final injunction and damages, per Article 80(4) of the Law of 20 July 1992;
  • a recurrent fine and publication of the judgment, per Article 80(5) of the Law of 20 July 1992; and
  • seizure of the infringing goods and any means specially adapted to work the invention, per Article 81 of the Law of 20 July 1992.

How are damages awards calculated? Are punitive damages available?

Damages are calculated on a compensatory basis (Article 80(4)(a) of the Law of 20 July 1992), to restore the patentee to the commercial situation that it would have been in had the infringement not occurred.

There are no punitive damages (in the sense of those made available in the United States).

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

The fact that a patent infringement action has never been fully litigated to a decision in Luxembourg renders the question difficult to answer with any degree of usefulness.

Timescale and costs

How long does it take to obtain a decision at first instance and is it possible to expedite this process?

The fact that a patent infringement action has never been fully litigated to a decision in Luxembourg renders the question difficult to answer with any degree of usefulness.

How much should a litigant plan to pay to take a case through to a first-instance decision?

The fact that a patent infringement action has never been fully litigated to a decision in Luxembourg renders the question difficult to answer with any degree of usefulness.

Appeal

Under what circumstances will the losing party in a first-instance case be granted the right to appeal? How long does an appeal typically take?

In the case of a claimant losing a countersuit in revocation, Article 74(4) of the Law of 20 July 1992 guarantees the claimant the right to appeal a first-instance decision pronouncing the full or partial nullity of the patent.

As for findings of infringement, regrettably the fact that a patent infringement action has never been fully litigated to a decision in Luxembourg renders the question difficult to answer with any degree of certainty.

Options outside court

Are there other dispute resolution options open to parties that believe their patents to be infringed outside the courts?

Arbitration (Articles 1224 to 1251 of the New Civil Procedure Code) and mediation (Articles 1251-1 to 1251-24 of the New Civil Procedure Code) are available as alternative dispute resolution mechanisms in Luxembourg. Arbitration is a formal procedure guided by a special agreement and decided by a panel of three arbitrators, with approval by the president of the Luxembourg court. Mediation is a procedure that is either formal (when proposed by a court judge) or informal (of the parties’ own initiative), with a mediator appointed to shuttle between the parties and facilitate dialogue to resolution. All information exchanged between the parties in the specific context of mediation is strictly without prejudice under Article 1251-6 of the New Civil Procedure Code.