Appeal for annulment

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Chapter 1. Definition

An action for annulment is an action brought against a decision of the President of the INPI (grant, rejection or maintenance of a patent), the person presenting the appeal considering that the decision should not have been to be taken (L411-4 CPI2nd paragraph).

Chapter 2. Implementation of the appeal

Section 2.1. Jurisdiction

The action for annulment must be brought before the Paris Court of Appeal (L411-4 CPI2nd paragraph together R411-19-1 CPI) which is the only patent authority.

Section 2.2. Person forming the recourse

Any interested person may lodge an appeal (R411-24 CPI).

Of course, if the holder or the plaintiff is not the person making the appeal, he is called to the case by LRAR (R411-24 CPI).

Section 2.3. Parties to the proceeding

Since the appeal is against the decision of the President of the INPI and not against the President himself, the President did not go to court.

He can not therefore be convicted under theArticle 696 CPC (costs) (C. Cass. com., December 13, 1994, No. 93-11643), nor (therefore) under the article 700 CPC.

Section 2.4. Time limit

2.4.1. Principle

The period of appeal is 1 month (R411-20 CPI) increased to 2 months when the defendant is abroad (R411-20 CPI together 643 CPC).

2.4.2. Extension of the time limit for litigation?

Usually, the free recourse allows to extend the time limit to form a contentious appeal: the time limit to lodge an appeal starting then from the decision of rejection of the ex gratia appeal (State Council, October 7, 2009, No. 322581).

Nevertheless, this does not seem to be the case here (INPI Examination Guidelines, IE 3.1).

Indeed, it should not be forgotten that the open appeal for decisions by the Director of the INPI is a judicial remedy and not an administrative dispute (L411-4 CPI): therefore, the administrative case law on prorogation does not seem to apply.

Section 2.5. Duty of representation?

During this procedure, it does not seem obligatory to be represented by a lawyer (R411-25 CPI), even if it remains possible.

Section 2.6. Form

The appeal is lodged by a declaration delivered or sent in duplicate to the Registry of the Court of Appeal (R411-21 CPI).

The president of the INPI can then present any observations, if he wishes (R411-23 CPI).

The declaration must include (R411-21 CPI):

  • if the applicant is a natural person:
    • name,
    • names,
    • profession,
    • home,
    • nationality,
    • date and place of birth ;
  • if the applicant is a legal person:
    • its social form,
    • its name,
    • its head office and
    • the body that represents it legally;
  • the date and purpose of the contested decision;
  • the name and address of the owner of the title or the owner of the application, if the applicant is not one of those persons;
  • a copy of the decision;
  • the grounds relied on (even if the applicant has one month to file them with the registry).

Chapter 3. Appeal

The judgment of the Court of Appeal may be subject to an appeal on points of law (L411-4 CPI2nd paragraph).

The appeal in cassation is open to both the INPI and the applicant (L411-4 CPI2nd paragraph).

The time limit for the appeal is 2 months (612 CPC) from the notification of the judgment to the applicant and the INPI (641 CPC together 678 CPC3rd paragraph).

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