Action for a declaration of non-infringement

The action for a declaration of non-infringement allows a third party to ask a judge to determine whether their activity is covered or not by the claims of a patent.

Article L. 615-9 of the French Intellectual Property Code provides that any person who can demonstrate industrial exploitation in the territory of a Member State of the European Economic Community or who has made effective and serious preparations for such exploitation may invite the holder of a patent to take a stance on the applicability of their patent to this exploitation, the description of which has been communicated to them.

If this person contests the answer or if the patentee has not taken a position within a period of three months, he may summon the latter before Court to rule that the patent is not an obstacle to the exploitation in question, without prejudice to the action for invalidity of the patent and a subsequent action for infringement in the event that exploitation is not carried out under the conditions specified in the description referred to in the previous paragraph.