Seizure-infringement as an element of proof

The inspection of property (saisie contrefaçon) or seizure-infringement is an element of proof, not a confiscation measure. It must allow to identify the acts of direct infringement (manufacture of the product, use or offering to use of the process, importation of the patented product or of the product directly obtained by the process). In case of an indirect infringer (a person other than the manufacturer), the seizure can allow to establish the full knowledge of the infringer.

The proceedings of seizure-infringement requires a legal authorization :

A detailed petition for a judge's order has to be presented to the President of the First Instance Court of Paris :

- Identification of the plaintiff ;

- Identification of the person against which the seizure must be performed ;

- Indication of the solicited measures of execution.

The President gives an order. He cannot refuse the descriptive seizure but he can refuse the actual seizure ;

- He can ask for a consignation (in order to garantee the reparation for an inquiry which could be caused by the seizure).

- The order can designate an expert who will examine the seized documents under the seal of confidentiality ;

- Sometimes the order can allow the seizure against people not designated but revealed by the first seizure (for example : resellers), on the territorial venue of the First Instance Court ;

- The order can indicate the place of the seizure or authorize all the buildings belonging to, or occupied by, the designated person (on the territorial venue of the First Instance Court) ;

- The order is for provisionnal enforcement, it can be restricted in time.

The object of the seizure

- in case of products claims: the components of the product, the finished product or the product in an intermediate state ...

- in case of process claims: agents as used, product as obtained, ...

"any establishment of fact useful in order to ascertain the origin, the consistence and the extent of the infringement": drawings, notices, invoices from suppliers, shop books, elements from accounting departments ...

Who conducts the seizure

The seizure is conducted by a bailiff (process-server) chosen by the patentee (territorial venue).

The bailiff can be accompagnied by one or more experts (counsel - patent agent -, photographer, specialist worker to disassemble and re-assemble the counterfeited object), a police inspector or a police constable.

The affidavits made by the bailiff are authentic, the explanations of the expert are not.

Progress of the seizure

* before carrying out the seizure, the bailiff must give a copy of the order (as well as the act ascertaining the deposit of a guarantee) to the holders of the objects (responsible person, shop chief), under penalty of nullity of the seizure. The name of the person to which the copy is given must be mentioned, under penalty of nullity of the seizure.

* actual seizure: the bailiff offers to pay the price of the seized objects (actual seizure of specimens). The seized objects are placed under the bailiff's seals or are deposited at the clerk of the Court. Specimens can be given to the patentee.

* The bailiff establishes a report describing the operations as conducted and the seized objects. A copy of this report must be given to the holder of the seized objects (at the end of the seizure or served later).

Action for infringement

After the seizure, it is compulsory to lodge a petition before the First Instance Court within 20 working days or 31 calendar days (whichever is longer), under the penalty of the nullity of the seizure.

Instead of serving a writ of summons to the person against which the seizure has been conducted, it is possible within this period, to serve a writ of summons to another infringer who has been revealed by the seizure (for instance : a manufacturer).

In addition to the person against which the seizure has been conducted, it is possible to serve a writ of summons out of this fortnight period to another infringer, even if he has been revealed by the seizure.

The seizure can be considered as being unauthorized (for example if it has been conducted with the intention of injuring or under useless and excessive conditions). An unauthorized seizure can allow the defendant to ask for damages, but it does not influence the action for infringement as it is only an element of proof.