Monday, May 9, 2022

France's Cour de Cassation Rejects Appeal from Judgment Finding Abuse of Right

The decision is San-Ei Gen FFI Inc. v. Nexira SASU, PIBD 1 179-III-1 (Jan. 26, 2022).  The facts are as follows.  In June 2011, patent owners San-Ei and Phillips, a Japanese and a British firm, respectively, notified Nexira of its alleged infringement of European Patent 1611159, titled "Modified Gum Arabic from Acacia Senegal."  Discussions between the parties followed in January 2012, at which time Nexira informed the patent owners of its belief that the patent was invalid by reason of an amendment of claim 1 that (if I understand correctly) broadened the claim beyond what was supported by the international application.  In May 2012, Nexira filed an action to nullify the French portion of the patent, after which the patent owners sought a saisie-contrefaçon and, in March 2013, initiated infringement litigation against Nexira.  The court of first instance dismissed the infringement action in December 2013.  By judgment dated May 28, 2015, the court before which the nullification action was pending nullified the patent with retroactive effect, after which Nexira sought damages for abuse of right.  The Cour de Cassation rejects the patent owners' appeal from a judgment in favor of Nexira in the amount of €104,499.45,  noting that the patent owners were professionals in the sector of concern here; and that they proceeded with knowledge, which could only have been bolstered by the January 2012 meeting with Nexira and the latter's subsequent nullity action, that their claim was questionable.  The court concludes that this behavior could only be explained by a willingness to engage in unfair competition, which the Court of Appeals could consider to have degenerated into an abuse of right.

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