The French Supreme Court clarifies infringement by equivalents

[26/09/2023]

In a ruling handed down on 28 June, 2023, the French Supreme Court (Court of Cassation) clarified the principles of infringement by equivalents, whereby a patented means is considered to be reproduced by a product marketed by a third party, even if this product has a different feature, when this feature performs the same function for a similar result or of the same nature as the patented means.

In this case, the patentee had sued the defendants for infringement of its patent entitled "Linear stalk separator with alternating oscillating movements", on the grounds that the defendants were using in their machines a stalk separating technology similar to their own, even though it did not incorporate all the claimed means: the marketed device features separating fingers working vertically, whereas the patented means consists of separating arms working horizontally.

In its assessment of infringement by equivalents, the Court of cassation focused solely on whether the means used in the allegedly infringing device performed exactly the same function as the patented means.

Indeed, the Court of Appeal had considered that the disputed means of the marketed device did not perform the dual function of channelling and beating bunches of the patented means, and had consequently ruled out any infringement by equivalents.

The Court of cassation thus considered that the Court of Appeal's argument was sufficient, since for there to be infringement by equivalence, both identified functions had to be reproduced, and the reproduction of only one of the functions was not sufficient. The Court of cassation therefore rejected the appeal.

This ruling is in line with recent case law, which tends to focus on the assessment of technical functions.