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Loyer&Abello Paris Cabinet d'avocats propriété intellectuelle

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Overcoming upheaval in the patent world in view of the entry into force of the UPC News
1 June 2018

Order No 2018-341 of May 9tt 2018 regarding Unitary European Patents and the Unified Patent Court takes the opportunity to introduce substantial changes to French patent law:

1) Patent invalidity claims become imprescriptible (Art. L.615-8-1 CPI)
2) The starting-point of the time-limit for infringement action becomes sliding (or slippery): the statute of limitations is of 5 years from the date on which the plaintiff has had or should have had knowledge of the latest fact justifying to the claim (Art. L.615-8 CPI) .
3) The non-exclusive licensee will be able to initiate infringement proceedings provided that it is authorized to do so in the license agreement and that the patent holder has been informed (Art. L.615-2 al. 3)
These three critical rules of procedure are, for now, limited to the field of patents, recreating again unfortunate disparities with the other intellectual property rights.
4) The UPC will be given an exclusive jurisdiction by default for European Unitary European Patents as well as for non-opted-out European patents (Art. L.615-18 CPI), but only at the end of the transitional period provided by Article 83 of the UPC Agreement (for a period of 7 years, with a possibility of a 7-years extension).
5) Eventually, for a non-opted out European patent, the corresponding French patent will continue to produce its effects, which could possibly induce the patent owners to maintain such French patent (Art. L.614-13 CPI).

One final important point to raise is that these provisions will only enter into force when the UPC Agreement does, which is itself subject to the German ratification. To be continued…

Author : Marie Liens

Auteur : Marie Liens

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