Posted: October 14th, 2019
Mermet v. Chavanoz Industrie, cour d’appel de Lyon, 12 September 2019, Docket № 16/06896
By Pierre Véron, Honorary President, EPLAW
On 12 September 2019, the cour d’appel de Lyon (court of appeal) overturned a judgment handed down on 8 September 2016 by the tribunal de grande instance de Lyon (court of first instance) which found Chavanoz’s patent EP 0 900 294 valid and infringed by Mermet.
The patent is for a composite yarn comprising a core composed of a continuous yarn made of glass and a coated sheath composed of a matrix consisting of PVC, and a fire-retarding filler incorporated into and distributed within the said matrix; such yarn is used for making solar protection fabrics (sunscreens).
In first instance, the tribunal set the damages to be paid by Mermet to Chavanoz at more than €25,000,000, the largest ever patent infringement damages award reported in Europe.
However, the court of appeal found the patent invalid for lack of novelty because Chavanoz sold the patented product before the priority date of the patent; to reach this conclusion, the court of appeal held that a confidentiality agreement drafted after such sales could neither prevent third parties from using these sales as evidence of the prior use nor erase the existence of such novelty-destroying disclosure (no “morning-after pill” available when the novelty requirement is concerned).