Seizures revoked after bailiff error
A relatively easy and relevant way to enforce evidence of infringement in France and in Belgium is to implement infringement seizures.
Indeed, the main difference with other seizures that can be required in Europe, for instance in Germany, is that it is not necessary to exhibit strong or even any presumption of infringement to obtain an Order to operate. Only administrative considerations are concerned (Patent in force, etc.). In other words, the aim of an infringement seizure is not to confirm an infringement but to establish it.
However, this action needs an acute attention to formal steps to be achieved, in particular if different seizures ordered by a unique ruling. In this case, the validity of the seizures should be jeopardized.
For instance, such multiple seizures should be ordered on an Exhibition place where the different Companies – addressed in the Order as to be seized - are present. The French Court “Tribunal de Grande Instance” has recently stated on this type of multiple seizures (TGI of Paris, on February, 11th, 2011).
Concerning the facts, a company MX is the proprietor of a European Patent having effect in France (EP 1 586 709). The patent is directed to a loader for a tractor that can adapt tools of different standards provided that the loader is equipped with a carrier frame according to the patent. Considering that the patent should be infringed by two Companies, DGS and SMS, operations of seizure were implemented - according to an Order executed by the president of the competent Court - in the Exhibition where those two Companies are supposed to exhibit their products.
The Order said clearly that the description of a product which could be considered as an infringement of the patented loader is authorized on the DGS and/or on the SMS stand. It appeared that the exhibited loaders on the two stands were fabricated by SMS.
However, the bailiff made a fatal error: he closed the first seizure before entering the second one. By this act, the effect of the order is exhausted and, accordingly, the bailiff was no longer in force to implement the second seizure.
Consequently, the second seizure was made without any legal basis and therefore is revoked. The seizure report achieved on the SMS stand is also revoked and the seized elements must be restored.
The conclusion of the story is that an infringement Seizure is a very good tool but should be handled with high caution.
Author: Thierry Schwartz - Publisher: Managing IP
