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Must a European patent, amended after opposition, be translated in French in order to have effect in France?

June - 2010
On April 14, 2010, the Court of Appeal of Paris delivered 24 similar judgments on the same point of law relating to the translation of European patents : shall we file to the INPI (French Patent Office) a translation of a European patent maintained in amended form after an opposition?

Indeed, since the entry into force of the London Agreement, on May 1, 2008, it is not necessary anymore to file a French translation of the whole specification of a European patent granted after this date, to validate this patent in France.

However, the new Article L. 614-7, paragraph 1 of the CPI (French Code for Intellectual Property),  resulting from the law 2007-1544 of October 29, 2007, which applies the dispositions of the London Agreement in the French Law, is ambiguous regarding the patents whose mention of grant has been published before May 1, 2008, but which have undergone an opposition proceedings before the EPO, and whose decision of maintenance in amended form after an opposition has been published after May 1, 2008.

In order to ensure an effective protection of their invention, several patent owners concerned by this situation have filed to the INPI a French translation of the amended patent.

The INPI refused these translations, on the ground that, since the entry into force of the London Agreement, France no longer requires to provide a translation.

Fearing that a failure to provide the translation renders ineffective their patents, several holders, filed an appeal of this decision before the Court of Appeal of Paris.

The latter, in its judgments of April 24, 2010, rejected the various appeals (see in particular Court of Appeal of Paris, Pole 5, 1st ch., April 14, 2010 / Dismissal of appeal against the decision of the Director General of INPI dated September 2, 2009, RG 1383471).

According to the Court, the new Article L.614-7 of the CPI must be interpreted "as a waiver of any translation requirement that applies immediately, including for the European patents whose mention of grant was published in the European Patent Bulletin at a date earlier than the entry into force of the new law”.

As a result, the protection in France is no longer subject to the provision of a full translation into French. Therefore, the penalty consisting in the loss of rights for a European patent in France, in case of failure to provide a translation within three months, is no longer to be feared.