Applying for a preliminary injunction
Preliminary injunctions (PI) in patent matters are governed by Article L. 615-3 of the French Intellectual Property Code (CPI), which implements Article 9 of Directive 2004/48/EC on the enforcement of intellectual property rights.
A PI may be requested either prior to any action on the merits, or during the course of ongoing proceedings before the case management judge.
A PI can only be requested by a person who has standing to sue for infringement on the merits - namely, the patent holder, the exclusive licensee (unless otherwise provided in the license agreement), and the non-exclusive licensee (if expressly permitted by the license agreement). In the case of licensees, prior notification must be given to the patentee before filing the PI application.
The injunction may only be directed against an alleged infringer or intermediaries. Furthermore, the patent relied upon must be a granted patent. This issue has recently been the subject of new case law. In summary proceedings dated 3 June, 22 July and 4 August 2022 (respectively case numbers 22/52718, 22/54367 and 22/54655), the Paris First Instance Court declared admissible requests for preliminary injunctions based on a mere patent application. However, the Paris Court of Appeal subsequently reaffirmed its consistent case law, holding that a patent application does not constitute a valid title for seeking injunctive relief. This position was confirmed in decisions dated 22 March 2023 (Case No. 22/11165) and 22 November 2023 (Case No. 22/19275). The patent must also be in force at the time of the decision.
PI proceedings are typically inter partes and started under summary proceedings (référé). In very exceptional and extremely urgent cases (where any delay would risk causing irreparable harm to the applicant), PI proceedings can, in theory, be ex parte (sur requête). In practice, such ex parte PIs are very rare – if not non-existent - and limited to situations where an injunction is required on the same day (eg in the context of a trade fair). This is because an inter partes hearing can be held within a few days in very urgent cases.
Although urgency is not a formal legal criterion for PIs under French law (the urgency requirement was removed in 2007 when implementing Directive 2004/48) unless an ex parte injunction is requested, it plays a role in the judge’s assessment of the imminence of the threat and the proportionality of the requested measures. Failure to act promptly may be perceived as evidence of a lack of irreparable harm.
There is also no requirement to have sent warning letters before filing the PI application.
The judge may, at the defendant's request, make the PI subject to the applicant's provision of guarantees to ensure compensation for the defendant if the measures are later found unjustified. However, the French courts tend to dismiss such requests when the applicant is in good financial health.
Evidence required
The onus is on the applicant to demonstrate:
- The alleged infringement or imminent threat thereof
- The plausibility of the alleged infringement ie:
(i) the absence of serious grounds to challenge the validity of the patent
(ii) the likelihood of infringement, ie that the acts fall within the scope of the patent.
- The proportionality of the requested measures.
To obtain a preliminary injunction, the applicant must present 'evidence reasonably accessible' that makes the infringement plausible. This standard does not require absolute proof but demands demonstration of a credible and substantiated infringement risk.
Factors that the courts take into consideration
In summary proceedings, the judge is traditionally referred to as the 'judge of the obvious', implying that provisional measures will only be granted when both the infringement and the validity of the patent appear manifest (the patent is prima facie valid and infringed). In practice, however, PI proceedings in patent cases often resemble a mini-trial, with substantive arguments and evidence presented by both parties in a way that is not very far from proceedings on the merits.
Imminent threat: Imminence is construed strictly, and French courts have considered that only certain preparatory actions — such as obtaining CE marking, presenting products at trade fairs, or the publication of a price in the Official Journal for Medical Products — may constitute sufficient indicators of imminent infringement. Mere preparatory acts without evidence of a concrete plan to enter the market before expiry of the patent are insufficient. Furthermore, defendants have no obligation to disclose confidential plans and failure to respond to a warning letter or provide an undertaking not to launch before patent expiry does not qualify as an imminent threat.
Validity of the patent: French judges conduct a prima facie assessment of patent validity during preliminary injunction proceedings. A foreign or European Patent Office (EPO) decision upholding the validity of the patent will be taken into consideration, however such a decision will not be sufficient to establish that the patent is prima facie valid. French judges will make their own assessment, with a fairly detailed review of the legal and technical merits of the invalidity challenge(s), and may consider that there are serious invalidity grounds even if the patent has been maintained after opposition proceedings at the EPO. On the other hand, if the patent has been revoked by a non-final EPO opposition decision, this will almost inevitably lead to the PI application being rejected. EPO revocation decisions against a parent patent or divisional may also be deemed as creating serious doubts on the validity of patents and can lead to the PI application being rejected.
Likelihood of infringement: Judges rely solely on the parties’ submissions, including documents, technical reports and demonstrations. Direct and indirect infringement, as well as literal and equivalent infringement, may be assessed if expressly argued by the applicant. French judges adopt a cautious approach: as 'judges of the obvious' they will only grant an injunction where infringement appears manifest from the available evidence.
Proportionality of the measures: In deciding whether to grant a preliminary injunction, French courts will assess the proportionality of the requested measures. Judges balance the patentee’s interest in preventing the infringement against the potential harm an injunction would cause to the alleged infringer and third parties. Relevant factors include irreparable harm, whether damages are quantifiable and can be adequately compensated for later, the remaining duration of the patent term and the relative importance of the allegedly infringing feature(s) compared to the overall product. Broader considerations may be factored in, particularly the impact on public interest, such as the availability of medicines, continuity of patient care, or potential disruption of supply chains. Market dynamics are also relevant: the risk of price erosion or irreversible loss of market share may favour the applicant, while disproportionate consequences for the defendant or downstream users may weigh against injunctive relief.
Obtaining PIs
Patent disputes in France fall under the exclusive jurisdiction of the Paris Court of First Instance (Tribunal judiciaire de Paris) (under Article D211-6 of the Code of Judicial Organisation).
PIs in patent litigation are typically heard within one to six weeks and decided within one to three months, depending on the complexity and urgency of the case.
While preliminary injunctions are available across all patent subject matters, the data shows a notable concentration in the pharmaceutical field. Between January 2020 and August 2025, out of 18 PI cases (excluding PI measures requested before the Case Management Judge), 11 involved pharmaceutical products, two related to medical devices, three related to telecommunications and one related to transportation.
Enforcement
In France, a preliminary injunction generally becomes effective once the court's decision has been formally served to the defendant by the applicant (via a bailiff), or within a short period thereafter—typically up to 15 days.
In addition to prohibitory measures per se, applicants may also request additional remedies such as an order to provide accounting records or financial information, an order to provide information, product recall and withdrawal and provisional (interim) damages. These ancillary measures are usually subject to a separate enforcement deadline, which is specified in the court order and may vary depending on the nature and complexity of the measure, ranging from a few days to two months.
At the applicant’s request, the judge may also order penalties to ensure compliance with the ordered measures. If the injunction is granted prior to proceedings on the merits, the applicant is required to initiate proceedings on the merits within 20 working days (or one calendar month if later), failing which the injunction will be lifted (upon request from the defendant).
Appeal
There are three levels of courts in PI proceedings in France:
- Paris First Instance Court (Tribunal judiciaire de Paris).
- Paris Court of Appeal (Cour d’appel de Paris).
- Supreme Court (Cour de cassation).
The courts of first instance and appeal adjudicate both questions of fact and law, whereas the Supreme Court solely addresses legal questions. French courts do not include technical judges; they are composed exclusively of legally qualified magistrates.
An appeal against a PI order can be filed before the Paris Court of Appeal within 15 days following service of the decision, unless the PI was sought in the context of pending proceedings on the merits, in which case an appeal can only be filed together with the decision on the merits (Article 795 of the French Code of Civil Procedure).
However, under the French Code of Civil Procedure, preliminary injunctions are subject to provisional enforcement by default. This means that appeals do not have suspensive effect, and the injunction remains effective and binding during the appeal proceedings.
Only the first President of the Court of Appeal has authority to suspend the provisional enforcement, and only under strict conditions: the appellant must demonstrate both a serious ground for annulment or reversal and that the enforcement would cause manifestly excessive consequences (Article 514-3 of the French Code of Civil Procedure).
Appeal proceedings on PI decisions in patent matters typically take between six to 12 months for a decision, depending on the complexity of the case and the court’s docket.
If the appellate court ultimately finds the PI to have been unjustified and revokes it, the defendant may seek compensation for any harm suffered during its enforcement, based on a strict liability, subject to clear evidence of the actual harm suffered is provided.
An appeal may also be lodged before the Supreme Court within a two-month period from the service of the Court of Appeal decision. However, if the PI application was made in the context of ongoing infringement proceedings on the merits, an appeal against the order granting or rejecting the PI can, in principle, only be filed together with the judgment on the merits (Article 913-8 of the French Code of Civil Procedure).
