An International Guide to
Patent Case Management for Judges

13.4.7 Abuse of procedure and disparagement

13.4.7.1 Abuse of procedure

A party who brings undue legal action, whether it is the title holder who is bringing the infringement action or the party challenging its validity, may be held liable under general civil liability, as defined in Articles 1240 and 1241 of the Civil Code, without it being necessary to establish bad faith or an intention to cause harm.³⁵⁸

However, there are few examples in the case law in which abuse of the right to bring legal action is accepted, with access to the courts being a fundamental principle recognized in both constitutional case law and the case law of the European Court of Human Rights. The Court of Cassation requires judges to specify the exact circumstances under which the exercise of the right to bring legal action may constitute wrongdoing.³⁵⁹

In practice, the Paris Judicial Court bases its decisions on the following criteria:

The right to bring legal action is abused when it is exercised with knowledge of the total absence of merit of the action brought, or is inexcusably frivolous, requiring the other party to defend itself against an action or a means that nothing can justify except the desire to obtain what one knows to be wrong, an intention to harm, or indifference to the consequences of one's frivolity.

13.4.7.2 Disparagement

In France, freedom of expression is a constitutional right, but its abusive exercise can be punished, including in the context of disparagement, typically defined as the disclosure of information that could discredit the products or services of a third party,³⁶⁰ even if only in the eyes of a single client, and where harm, even if only non-pecuniary, arises from an act of disparagement.³⁶¹

As a result, “disclosure to a manufacturer’s clients of an infringement action that has not given rise to a judicial decision, and that lacks a sufficient factual foundation in that it is based solely on the legal proceedings initiated by the rights holder, constitutes wrongful disparagement.”³⁶²

In that regard, it is important to specify that the proceedings, the parties’ submissions and the evidence exchanged are not published. In contrast, pre-trial hearings and pleadings are public.

The parties, and in particular the patent holder, must therefore exercise caution in their communications with third parties, even those who could be described as infringers, including in letters of notification of infringement that the right holder is entitled to send under Article L. 615-1 of the IPC:

The sending of a letter to a company’s clients by the holder of European patents, exclusively concerning the licensing scheme implemented by the holder and drafted in threatening terms, with no explanation of the evidence supposedly constituting the alleged infringement, is not a mere notification to vendors of a risk of patent infringement in the event of their continued commercialization under Article L. 615-1, paragraph 3, of the Intellectual Property Code and, insofar as it questions the loyalty of that company and its supplier in the manufacture and commercialization of their products, constitutes an act of disparagement amounting to unfair competition.³⁶³

13.4.7.3 Publication of judicial decisions

Decisions are delivered in open court.

However, with regard to the publication or dissemination of judicial decisions, the case law makes it clear that such procedures (see Section 13.3.4.4) do not preclude the victim’s right, except in the event of abuse, to take, at their own expense, any other steps to publicize the ruling handed down in their favor.³⁶⁴

The first restriction on the spontaneous publication, unauthorized by the court, by one party to the proceedings lies in the demonstration of abuse consisting of an intention to cause harm or a use of this right of publication that diverges from its intended purpose or serves no useful purpose. It is thus wise for such a publication to be limited to the terms of the judicial decision without giving it an “excessive scope”³⁶⁵ or a meaning that it does not have, which may constitute disparagement of products or services.

The second restriction concerns the specific rules governing trade secrets. When a trade secret infringement is alleged, the judge may “at the request of a party or a third party, if the protection of this secret cannot be guaranteed otherwise and without prejudice to the exercise of the rights of the defense [...] adjust the grounds for their decision and the conditions of its publication to the requirements for protection of the trade secret.”³⁶⁶ In practice, a decision that does not refer to the full grounds will be made available to the public as it does not disclose protected elements. The full decision will only be disseminated to the parties affected by those grounds.

A third restriction also exists for the specific case of a natural person who runs a commercial business and whose privacy may be infringed as a result of their professional activities, which “may fall within Article 8 (of the European Convention on Human Rights) where [such activities] have repercussions on the manner in which they construct their social identity by developing relationships with others.”³⁶⁷

The law now stipulates that judicial decisions shall be made freely available to the public in electronic form,³⁶⁸ provided that the names of natural persons and any element that may jeopardize their privacy or safety are redacted. Legal persons who would like their names to be redacted from judicial decisions have, like all interested parties, a right of before the First President of the Court of Cassation,³⁶⁹ which is little used in practice.