The French Cour de cassation paves the way for cross-border injunctions

In a ruling handed down on 29 June 2022 (Cass. 1st civil Ch., 29 June 2022, G 21-11.085, Hutchinson v. Tyron Runflat et al), the Cour de cassation (French highest civil court) overturned a decision of the Paris Court of Appeal which had denied its jurisdiction over acts of patent infringement committed in other EU Member States by companies based outside of France, but had however retained its jurisdiction for acts of infringement committed in those same other EU Member States by the French defendants: the Cour de cassation sided with the patentee that the Court of Appeal had failed to draw all the necessary consequences of its finding that it had jurisdiction over acts committed by the French defendants allegedly infringing the German and English parts of the European patent at issue (the suit having been brought prior to Brexit).

The Cour de cassation took the opposite view that this situation was one for application of Article 8.1 of the Regulation (EU) No. 1215/2012 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters (known as “Brussels I bis”), aimed at preventing irreconcilable solutions from jurisdictions of different EU Member States, as interpreted in the C-616/10 decision of the Court of Justice of the European Union (Solvay v. Honeywell).

The Cour de cassation also upheld another route, based on Article 14 of the French civil code, which allows a French plaintiff to start proceedings before French courts in the absence of a superseding international convention. According to the Cour de cassation, French courts have, on that ground, a cross-border jurisdiction over the infringement acts committed by the South-African supplier in Germany and the UK, which are related to the acts committed by the other defendants.

This solution could well lead to cross-border injunctions being issued by French courts in the near future.

As a side note, the defendants have not challenged the validity of the German and English parts of the European patent. If they do so, this nullity claim will be within the exclusive jurisdiction of the German and English courts under Article 24.4 of Brussels I bis Regulation and may have an impact on the progress of the infringement proceedings before French courts.

Full decision: Hutchinson_v_Tyron