Patent litigation is grafted onto the general civil procedure. Some useful reminders, therefore, on the fate of a judgment under appeal and how it is enforced — points that are often decisive in practice, particularly when a ban on commercialization is at stake.
The Suspensive Effect of Appeal
Traditionally, appeal — an ordinary remedy — is suspensive: it interrupts the enforcement of the judgment (Article 539 of the Code of Civil Procedure). At least, that was the principle.
However, since the 2019 reform (Decree No. 2019-1333, for proceedings initiated as of January 1, 2020), first-instance decisions are provisionally enforceable as of right (Article 514 of the Code of Civil Procedure). Consequently, in practice, appeal no longer suspends enforcement. The principle and the exception have, so to speak, swapped roles.
Provisional Enforcement
Provisional enforcement is now as of right, unless otherwise provided by law or the decision (Article 514 CPC). The first-instance judge may, in certain cases, exclude it (Article 514-1 CPC); and, once the appeal is filed, the presiding judge of the court of appeal may stay enforcement if there is a serious ground for reversal and a risk of manifestly excessive consequences (Article 514-3 CPC).
The stakes are considerable in infringement cases: a cease-and-desist order coupled with provisional enforcement takes effect immediately, despite the appeal. This is a powerful weapon for the patent proprietor — and a serious risk for the defendant, who may have to cease its activity even before the court of appeal has ruled.
Forced Enforcement
With an enforceable title, the prevailing party facing resistance from its adversary may resort to forced enforcement, through a judicial officer (formerly known as a bailiff), in accordance with the Code of Civil Enforcement Procedures. An astreinte — a sum due per day of delay — is frequently imposed to compel the infringer to effectively cease its acts.
Liability for Enforcement
Final reminder, and not the least: provisional enforcement proceeds at the risk of the party enforcing it. If the decision is subsequently overturned on appeal, the party who enforced it must compensate for the harm caused by such enforcement, without having to demonstrate fault. Before seizing stocks or shutting down a production line based on a first-instance judgment, it is therefore best to be very certain of the facts.