An International Guide to
Patent Case Management for Judges

13.3.3 Evidence: infringement seizure, right to information and customs measures

13.3.3.1 General rules

Evidentiary practice in patent litigation is for the most part governed by the same ordinary rules that apply in civil litigation generally, as outlined below. One area of specificity, however, relates to the regime for obtaining evidence, as discussed later in this chapter.

13.3.3.1.1 Burden of proof

French law places the initial burden of proof in patent cases on plaintiffs, who, according to Article 9 of the CCP, must prove in accordance with the law the facts necessary for the success of their claims. The same then applies to the defendant if they file a counterclaim.

This regime distinguishes, however, between the proof of legal acts, which must follow certain forms, and the proof of legal facts, which need not.

Legal acts critical to the litigation (such as contracts or donations) must be proven by the party relying on them (such as creditors seeking compliance with obligations). If they provide such proof, liable parties must prove release from those obligations.

Parties relying on an assignment or license agreement, if priced or valued at over 1,500 euros,¹⁰³ or on other patent-related agreements, must provide proof of their existence, such as a signed written document or notarized deed.¹⁰⁴

Absent a signed document – owing to the material or moral impossibility of obtaining it, or to an established practice of dispensing with such documents, or to the loss of the document resulting from force majeure – prima facie written evidence of its plausibility (non-formalized, unsigned and attributable to the opposing party) may be produced. Further supporting evidence must then be provided.¹⁰⁵ Such an act may further be proven by a party's admission (against that party's own interests) that it indeed exists (Article 1383-2 of the Civil Code for judicial admission or Articles 1385 to 1385-4 of the Civil Code for the decisive oath).

Unlike legal acts, a legal fact, relating to any situation, may be proven by any means.¹⁰⁶ This is particularly true in infringement cases, a principle recalled in Article L. 615-5(1) of the IPC. Evidence of all kinds may be produced: publications, witness statements, bailiff reports, private expert reports, technical documents, etc. This principle is important because most proceedings in France are purely written, without involving witnesses or experts.¹⁰⁷

It is thus incumbent on parties to provide evidence and communicate it to their opponents. Based on that evidence, if “serious, specific and consistent”,¹⁰⁸ judges then form their opinions and presumptions.

The role played by judges is neutral: they do not in principle request evidence on their own initiative. However, once a trial on the merits has begun, the judge may, at a party's request – and without making up for a party's deficiency in assembling evidence¹⁰⁹ – enjoin the production of a document “useful for establishing the truth.”¹¹⁰ In practice, it is a pre-trial judge¹¹¹ who usually handles such requests, which might include the production of a contract concluded with a third party, accounting and financial materials falling under the right of information or products alleged to be infringing. Judges may also order any legally admissible investigatory measures, even if an infringement seizure has not previously been ordered.¹¹²

The burden of proof may be reversed by legal presumptions, most commonly in relation to patent ownership.

It is then up to the defendant to rebut such presumptions, either by providing evidence during the trial or by bringing an action to claim or recover patent ownership in the defendant's own name.¹¹³ The validity of the patent is also presumed until proven otherwise.

The law also allows judges to order a reversal of the burden of proof in cases involving patented processes.¹¹⁴

13.3.3.1.2 Freedom and fairness of evidence

The freedom of evidence principle allows for all modes of evidence to prove a legal fact and for any element to be produced in court to support a party's demonstration.

The right to a fair trial, enshrined in Article 6(1) of the European Convention on Human Rights, underpins the evidentiary rights of parties,¹¹⁵ including both the right to produce the evidence of a party's choice before the judge ruling on the merits of the case and the right to obtain it from a third party, where appropriate, by court decision.

The corollary to this right is the obligation for the judge to conduct an examination of the parties' grounds, arguments and offers of proof.¹¹⁶ In the event a party requests a judicial search for evidence, the judge determines whether such a search is necessary, to respect the applicant's right to evidence, and proportionate to the conflicting interests of the persons concerned.¹¹⁷

Parties are under no obligation to disclose all evidence in their possession or knowledge. They may select the evidence they deem most relevant and favorable to their interests. However, the judge may of their own motion invite a party to produce a document the existence of which has been positively demonstrated but which has not been disclosed.¹¹⁸ At the request of a party, the judge may also order the production of a document.¹¹⁹

The law provides specific protection for trade secrets.¹²⁰ A judge ordering an investigatory measure or ruling on the merits may arrange a special procedure to examine evidence characterized by a party as a trade secret, to form their own opinion about it or set it aside. The judge may examine such evidence alone, seek an expert's opinion, order the content of documents to be summarized, render a decision in camera, or communicate only part of their reasoning to the parties.¹²¹ It is up to the applicant to demonstrate the existence of each trade secret associated with specific aspects of the case, and not simply characterize everything as unconditionally requiring blanket secrecy.¹²² Trade secrets are defined restrictively as information not easily accessible, having commercial value and justifying reasonable protection measures under the circumstances of the case.¹²³

Some evidence is excluded by the courts as unlawful, being contrary to public policy rules or infringing on another party's or a third party's rights. This is the case, for example, if a conversation is recorded without the knowledge of the party against whom it is then invoked.¹²⁴ On the other hand, the Court of Cassation, ruling in plenary session (full bench), has ruled that "[...] in a civil trial, unlawfulness or unfairness in obtaining or producing an item of evidence does not necessitate its exclusion from the proceedings", provided its inclusion "is an essential exercise of the right to evidence and the encroachment is strictly proportionate to the aim in committing it."¹²⁵ A party's right to evidence can thus justify the admission of such evidence, previously deemed unfair and inadmissible, for consideration in the case.

When judges consider requests for different forms of evidence, they perform this same exercise of weighing proportionality between the right to evidence and the conflicting interests at stake.¹²⁶

In matters relating to IP, they must be guided in particular by the evidentiary principles set out in Directive 2004/48/EC.¹²⁷

13.3.3.2 Modes of proof

Plaintiffs may resort to various ordinary modes of proof depending on what they deem necessary and what is in fact accessible to them.

13.3.3.2.1 Material evidence

In compiling material evidence, plaintiffs may purchase potentially infringing products themselves, retaining proof of purchase (receipt, invoice, etc.) and performing, or having performed, relevant technical inspections thereof. They may also take photographs or make screenshots of relevant websites. While such evidence may indeed be effective, parties often resort in practice to bailiff reports instead, to avoid disputes over probative value.

Such bailiff reports, obtained at the plaintiff's expense, provide a means to maximize probative value for this type of evidence, as bailiff findings are considered irrefutable until proven otherwise.¹²⁸ These reports record what the bailiff has observed, such as the content of a website (accompanied by screenshots), the performance of a product purchased, its disassembly or technical examinations carried out in the bailiff's presence.

While unquestionably a solid means of evidence, bailiff reports also have certain limitations. First, bailiffs can in principle only record what is publicly accessible. They cannot enter stores – which are private places, even if open to the public – without disclosing their identity. Nor can they have an active role in the operations they record. They cannot personally purchase products, only observe third persons doing so (entering the store empty-handed, leaving it with the product – or purchasing it on the internet with receipt of the package also recorded). Nor can they tamper with products physically, only record a third person doing so. Bailiffs failing to observe these restrictions may see their reports invalidated.

Plaintiffs seeking evidence of infringement that can only be obtained on premises not accessible to the public, belonging to the infringer or a third party, must resort not to a simple report but to an infringement seizure (see Section 13.3.3.3).

13.3.3.2.2 Witness testimony

Each party may call upon witnesses to testify, which in practice results in written statements only (in accordance with Articles 200 to 203 of the CCP). When statements refute or contradict one another, the judge sovereignly assesses their scope and probative weight.

Pre-trial judges may also hold hearings to question witnesses, a procedure known as an “inquiry”, governed by Articles 204 to 231 of the CCP. Lawyers may request the judge to ask certain questions during such hearings, but the judge remains in control of the process (with no cross-examination). In practice, however, such inquiry hearings are extremely rare.

When witnesses reside far from a court's jurisdiction, judges may, at the request of the parties or ex officio, have testimony collected or even investigatory measures and other judicial acts carried out, as they deem necessary, in another domestic jurisdiction or in a foreign state. This entails the use of letters rogatory (Articles 730 to 734-2 of the CCP).

13.3.3.2.3 Probative value

Guided by the principle of freedom of evidence discussed above, the judge freely assesses the probative weight of the evidence submitted.

No evidence may be rejected on principle as not probative a priori: the judge must examine all evidence that is legally admissible and subjected to adversarial proceedings and personally assess its probative value.

That assessment is based on the intrinsic quality of the evidence, contextual factors tending to corroborate or cast doubt on it, and how some pieces of evidence might corroborate or contradict others. For example, absent indications to the contrary, a screenshot may be sufficient to prove a given fact, leaving it up to the defendant to explain why it is not, rather than relying on abstract considerations.

Unlike the legal systems of other countries, there is no general principle in France requiring judges to hold as true a fact alleged by one party and not contested by the other; the general rules for assessing evidence apply.

13.3.3.2.4 Technical evidence

The freedom of evidence principle is qualified where technical issues are concerned. Plaintiffs are certainly free to produce evidence as they choose regarding the technical aspects of a dispute – citing expert technical studies, for instance, to clarify facts unknown to the court, or beyond its own expertise. That cannot, however, be the only evidence considered on the point concerned.

The court cannot, in fact, rely exclusively on such a private expert report: it must determine whether other evidence exists to corroborate it.¹²⁹

It might, for instance, seek corroboration in another private expert report – even if produced by the opposing party – or consult another expert in the field concerned, or even in the appendices to the report, if these are not the work of the expert himself.¹³⁰

The court might in fact order such a report itself (paid for in advance by the party requesting it, as the case may be) – and such judicial investigatory measures, governed by Articles 232 to 284-1 of the CCP, need not be corroborated by other technical evidence. Such measures are cumbersome, however. Apart from a prior judicial decision, they entail a degree of formalism whose terms, duration and cost are beyond the parties' control. The expert involved, moreover, may under no circumstance comment on legal questions (interpretation of claims, patent validity or whether rights have been infringed, for instance).

13.3.3.3 Infringement seizure

13.3.3.3.1 Subject matter, scope, petition and order

Infringement seizure constitutes a specific, commonly used and central evidentiary tool in French IP law, particularly in the case of patents, but also trademarks, designs and copyright. According to Articles L. 615-5 and R. 615-4 of the IPC, infringement seizures can be used to establish proof of infringement. Derogating from ordinary law, they enable parties alleging infringement to obtain judicial authorization, through an ex parte procedure, for a bailiff to go wherever the infringement of products or processes (which must be precisely specified) is suspected to be occurring, in order to record it and perform an actual seizure (for evidentiary purposes) and/or a descriptive seizure, with or without taking samples, as is frequently done in practice.

An “ex parte procedure” is one in which the person targeted by the seizure is not informed of it in advance, to avoid the risk of concealment or destruction of evidence.

The bailiff, the public officer responsible for executing the measure, may perform such seizures on private or professional premises – if necessary, including those of third persons not directly parties to the litigation.¹³¹

Infringement seizure thus makes it possible to seek and secure evidence that would otherwise be inaccessible, given the secret, concealed nature of infringement.

In practice, infringement seizure may consist of:

• preparing a detailed description of the products or processes concerned;

• taking photographs and/or videos;

• physically seizing product samples;

• copying or seizing documents (including data hosted abroad if accessible from the seizure location in France¹³²); and

• conducting tests on the products or processes concerned.

This measure is intended to provide proof of the infringement, including its origin, nature and extent, and thus may entail the seizure of commercial, financial and even accounting documents, subject to the distrainee's right to obtain protection for trade secrets. Thus, while intrusive, the measure is also regulated to balance the patent owner's right to proof of infringement against the distrainee's right to protection for legitimate interests.

Given its ex parte character, the basis for ordering an infringement seizure requires reasonably accessible evidence suggesting that infringement may be occurring. Once this condition is met, the judge must order the seizure, even if minimal, determining its intensity and scope based on the proportionality of the plaintiff's request from the perspective of the distrainee.

As noted, the IPC transposes Directive 2004/48/EC into domestic law and must therefore be interpreted in light of Articles 3 and 7 of that text, which provide that judges must ensure the fair and proportionate nature of these measures, as well as their effectiveness for the patent owner.

Judges authorize infringement seizures in response to ex parte applications, without the applicants having to justify their necessity in adversarial proceedings (unlike the ordinary law procedures provided for in Article 145 of the CCP, which must be reasoned). The ex parte applicants, moreover, are under an obligation to disclose any information they know of that might influence the judge's decision, particularly as to the scope of the measure.¹³³

Judges have the power to set the conditions and scope of an infringement seizure. Before Directive 2004/48/EC, the Court of Cassation had ruled that judges could not refuse authorization to proceed with the seizure if requested in the form and with the justifications required by law.¹³⁴

Under current practice, the patent owner's lawyer submits a petition, supporting documents and a draft order to the duty judge (delegated by the President of the Judicial Court), who then rules within a few hours or days. See on this point the Protocol for the Evolution of Procedural Practice, concluded between the Paris Judicial Court and the Paris Bar (EPP Protocol).¹³⁵ The petition is not argued orally unless the judge requires explanations from the petitioner's lawyer before issuing the order.

Although an infringement action may be initiated after a patent has expired (in order to target acts committed before then), infringement seizures may neither be requested nor carried out, under current case law, after expiration has occurred.

While seizures are most often initiated before litigation – to establish proof of infringement – they may also be requested during the proceedings. They may only be ordered in the latter case by the presiding judge of the chamber that has been assigned the case, or is already hearing it. That judge's competence may only be challenged on grounds of lack of jurisdiction.

13.3.3.2 Execution of the infringement seizure

Infringement seizures need to be executed within the time frame specified by the order (usually one month) by a bailiff chosen by the applicant (patentee), possibly assisted by an independent expert should technical and/or scientific knowledge be required – and if authorized by the judge. The expert may be an industrial property attorney, including the applicant's usual industrial property attorney, since members of that profession are bound by a statutory obligation of confidentiality.¹³⁶ A computer expert or other qualified person may also be authorized by the judge to act in this capacity.

Neither applicants themselves nor persons under their control may join the bailiff as participants in infringement seizure operations.¹³⁷ Their exclusion is intended to guarantee the impartiality and neutrality of the operations against any pressure or influence on the part of the applicant.

Bailiffs have the obligation to serve the order authorizing the infringement seizure immediately before the start of operations; their formal reports must then indicate the exact time of such service and of the subsequent commencement of operations. Service of the order on short notice is not in itself sufficient to invalidate the procedure.¹³⁸

Bailiffs must precisely record all their actions and findings (including the collection of any statements from representatives of the distrainee) in their formal reports, copies of which are provided to the parties at the conclusion of the operations. The probative value of those reports is particularly high. Bailiffs may ask the questions necessary to accomplish the tasks entrusted to them but must refrain from conducting interrogations.¹³⁹

If it transpires during an operation that documents to be seized by the bailiff are considered trade secrets by the distrainee, and if the judge has not already ordered the provisional sealing of those documents ex officio, it is up to the distrainee to immediately request their placement under seal. Where documents have been placed under provisional seal, the distrainee has up to one month following service of the ex parte order to apply to the judge for a revocation or modification, in order to obtain appropriate protective measures for documents that are necessary for the litigation – and that truly constitute trade secrets – upon their disclosure to the applicant. To rule on such a request, the judge may order a sorting procedure. Failing such action, the documents provisionally sealed are automatically handed over to the applicant.¹⁴⁰ The provisional seal regime is the exclusive method for protecting trade secrets in this context.¹⁴¹ It is intended to balance evidence gathering with protection for a distrainee's sensitive information.

After execution of the seizure has been completed:

• The formal seizure report is communicated to all parties within a few days (any annexes containing documents relating to trade secrets may be subject to specific protection and communicated subsequently, following an amicable discussion between the parties or a court decision).

• The applicant must then initiate civil or criminal proceedings on the merits within 20 working days or 31 calendar days if this period is longer (regardless of the date of communication of the formal seizure report), failing which the entire seizure, including the description, may be invalidated if the distrainee so requests, without having to justify that request (Articles L. 615-5 and R. 615-6 of the IPC). This requirement guarantees the use of infringement seizures as an instrument for initiating actual legal proceedings rather than as an end in itself (for “fishing expeditions” or even industrial espionage).

13.3.3.3 Litigation relating to infringement seizure: revocation, modification, invalidation

An action to set aside, modify or invalidate an infringement seizure places the case back on an adversarial footing. Article 497 of the CCP authorizes judges who have ordered such measures to revoke or modify them at a party's request, particularly if the adversarial process reveals that the measure should not or could not have been ordered, in whole or in part, because a necessary condition for ordering it had not been met or information likely to have changed the ordering judge's opinion was not disclosed.

Annulment by the judge on the merits: in the event of an irregularity committed during an infringement seizure operation (the bailiff exceeds the scope of the assignment, for instance), the distrainee may ask the court seized on the merits to annul the operation, in part or in whole. If the court agrees, only those parts of the operation affected by the irregularity, and references to them in the formal report, are then annulled.¹⁴²

That court's competence to annul the operation is not limited, however, to cases where irregularities are committed during its execution. The court can invalidate the procedure on grounds derived, inter alia, from the conditions for ordering it, irrespective of the exclusive jurisdiction of the ex parte judge concerned to hear motions for its revocation or modification.¹⁴³

The retroactive annulment of the patent concerned in an infringement seizure renders null the procedure itself, no part of which therefore subsists, making it likewise impossible to base any pretensions thereon and nullifying any measure following therefrom.¹⁴⁴

Apart from this annulment hypothesis, however, a formal seizure report constitutes evidence that may be used in support of any proceedings in France or abroad (before those foreign courts that accept such evidence). French courts refuse to ban the use of such evidence in proceedings abroad.¹⁴⁵

13.3.3.4 Right to information

In France, the right to information offers another avenue for patent owners to determine the origin and scale of infringement. It is an investigatory measure available through adversarial proceedings by which a patent owner can request a court to order a defendant, or any person involved in the distribution chain concerned, to disclose any documents or information relating to the origin, scale and distribution of products or processes alleged to be infringing (Article L. 615-5-2 of the IPC). This right can be exercised against the main defendant as well as any person who possesses, uses, provides or offers to provide allegedly infringing products or services.

Stemming from the transposition of Directive 2004/48/EC and inspired by the TRIPS Agreement, this right enables a patent owner to determine the nature and extent of infringement activity, combat distribution networks and precisely assess the resulting prejudice. In cases of patent litigation, it allows parties to obtain disclosure of relevant, specifically identified documents, and more broadly, require defendants or any persons holding the products concerned to provide all information useful to tracing their distribution chain, potentially opening the way for additional actions. Generally accompanied by periodic penalty payments, right-to-information measures are particularly useful in combating structured infringement networks, enabling patent owners to act effectively against all actors involved in the circulation of infringing products.

The right to information may be exercised independently of or in addition to an infringement seizure, to compile information on the names and addresses of producers, manufacturers, distributors and other holders; the quantities produced, marketed, delivered, received or ordered, and the prices obtained for the goods or services in question.¹⁴⁶

Grounds of defense relating to trade or banking secrets must be debated before the judge, who must weigh the conflicting interests involved and the relevant characteristics and factors of the specific case. Parties alleging such secrets must demonstrate the need for protective measures on a case-by-case basis, in accordance with procedures defined in Articles L151-1 to L151-9 of the Commercial Code.

The right to information offers plaintiffs a means to compel defendants, and potentially third parties, to disclose commercial or accounting documents not otherwise accessible, for use in assessing damages and closing down infringement activity known to such actors. As a means to obtain accounting documents from suppliers or resellers, it provides a particularly useful complement to infringement seizures.

Where such evidence is required before proceedings on the merits of an infringement case are initiated, to assess the prejudice and profits resulting from infringement, with the potential involvement of third parties, it can be obtained through recourse to a summary proceedings judge and subsequently a pre-trial judge, both of whom have the powers necessary, under Article 788 of the CCP, to rule on requests for such evidence.¹⁴⁷

Right-to-information measures are often ordered alongside judgments on the merits, particularly regarding the information necessary for the assessment of prejudice. Provisional rulings are issued with respect to indemnity claims pending the disclosure of evidence and resumption of proceedings necessary for the final assessment of damages.

13.3.3.5 Customs measures

Customs measures constitute a complementary mechanism for combating IP infringements, allowing patent owners to prevent the circulation of goods that infringe their rights.

These measures are divided into two complementary regimes according to whether goods suspected of infringement cross the external border of the EU or enter French territory from another EU member state. In the first case, a customs detention mechanism is established in Regulation (EU) No. 608/2013 repealing Council Regulation (EC) No. 1383/2003.¹⁴⁸ In the second, Articles L. 614-32 et seq. of the French IPC establish national regulations in this area. Given the preeminence of the EU regime in harmonizing customs detention procedures throughout the country, the scope of the national regulations is essentially residual.

It is important to note that customs detention does not prejudice the eventual outcome of infringement litigation on the merits, and that patent owners must initiate such litigation to assert their rights within a specified time frame, failing which the detention is lifted.

Should detention prove unjustified, holders of the goods detained may seek damages, provided they can demonstrate loss (resulting from storage costs, for instance).

13.3.3.5.1 National measures

The national regime established under the IPC applies primarily to goods circulating between EU member states, without passing through external EU borders. There are two methods of detention for such goods.

The first is detention requested by a patent owner or persons authorized to exploit the patented invention. Such requests are made through a prior written application filed with the customs administration to detain goods suspected of infringement. Applications must justify the right invoked, providing proof of patent ownership or authorization to exploit the patented invention, and identifying the goods suspected of patent infringement, with a technical, precise and detailed description of the authentic goods and information enabling customs authorities to easily recognize infringing ones – or providing examples of common infringements. Applications must be addressed to the Directorate General of Customs and Indirect Taxes (DGDDI), Tariff and Commercial Policy Department (COMINT3), which must accept or reject them within 30 days. If complete and properly reasoned, applications are granted for a renewable one-year period.

When goods are detained, the applicant, the holder of the goods and the public prosecutor (procureur de la République) must be immediately notified. The right holder may then request specific information about the goods, including their nature, quantity, origin and destination, and permission to examine the goods. The holder then has 10 working days (or three for perishable goods) to take action. This period may be extended by an additional 10 days upon a reasoned request (Article L. 614-32 of the IPC).

Goods can be detained ex officio when customs controls identify goods suspected of infringing a patent. Rights holders are immediately notified of such detentions and then have four working days to file an application, failing which the detentions are automatically lifted. The 10-day time limit for rights holders to take action runs from the acceptance of that application (Article L. 614-33 of the IPC).

Holders of the goods are in any case notified of the detention and may contest it, or request release of the goods, if the right holder fails to initiate timely action. In the event of unjustified detention, holders may seek damages, if able to prove prejudice, before the competent court. Applicants, for their part, may request destruction of the goods and/or initiate legal proceedings (civil or criminal).

13.3.3.5.2 EU measures

The EU regime, applicable to goods crossing external EU borders – upon importation, exportation or transit through a free zone or free warehouse – is governed by Regulation (EU) No. 608/2013. According to that Regulation, where customs authorities identify goods suspected of infringing an IP right, such goods “shall” be detained if an application for the authorities to take action, filed by the right holder or other authorized person, has been granted (Article 17), or “may” be detained if no such application has been previously granted (Article 18). The procedure provided for by the Regulation is similar to the procedure provided for under national law.

Applications for customs authorities to take action in such cases must contain, inter alia, information proving the applicant’s standing, indicating the IP right to be enforced and enabling authorities to identify potential infringement (Article 6). Applications that are granted are valid for one year (Article 11) and may be extended for an additional year (Article 12). They are submitted online via the European Union Intellectual Property Office (EUIPO) IP Enforcement Portal (IPEP).¹⁴⁹

Once applicants have been notified that their applications have been granted, they may inspect the goods and have samples taken (Article 19) – but may also disclose information received from customs authorities for the purposes of legal proceedings, criminal investigations, etc. (Article 21). The goods may then be destroyed under customs control provided three conditions are met: the right holder confirms in writing, within 10 working days (three for perishable goods), their consent to the destruction; they affirm their conviction that their rights have been infringed; and the declarant or holder of the goods also consents in writing to the destruction – or does not explicitly oppose it within the same time limit, failing which their agreement is presumed (Article 23).

Unlike national law, however, Regulation No. 608/2013 excludes small quantities of “goods of a non-commercial nature” contained in travelers’ personal luggage, as well as goods manufactured with a patent owner’s consent – even those exceeding the agreed quantities (Article 1).

13.3.3.6 Confidentiality of evidence (protection of trade secrets)

The protection of trade secrets belonging to the party from whom the evidence obtained by the applicant originates is most often settled by means of a confidentiality ring, the terms of which are determined flexibly by the parties and their counsel. The EPP Protocol referenced earlier provides in particular for this practice.

Failing agreement between the parties, French law provides for a procedural regime to organize this protection (Articles L153-1 et seq. and R153-1 et seq. of the Commercial Code, transposing Directive 2016/943/EU of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure).

This protection aims to limit so far as necessary the risk of trade secrets being breached. It cannot, however, prevent the disclosure of evidence necessary for the litigation.¹⁵⁰