Patents are conceived as tools to encourage technological innovation and drive technical progress, which in turn is seen as a source of economic and social advancement.

Inventors are incentivized to innovate and patent their creations because they are granted exclusivity for a specified period, allowing them to recoup research and development expenses.

A patent grants its holder exclusive territorial exploitation rights for a limited time and requires disclosure of the components comprising the patent.

In France, patents are issued by the National Institute for Industrial Property. France is also a member of the European Patent Office, which grants patents at the European level. The European Patent Office’s territory does not precisely align with that of the European Union as countries like Liechtenstein, Turkey, Albania, Switzerland, the United Kingdom, Iceland, Montenegro, North Macedonia, Norway, and Serbia are members.

Patents provide exclusivity for 20 years from the filing date. However, French law allows for the possibility (especially for medicines) of obtaining a utility certificate, extending the protection period.

Inventions involving novelty, inventive activity, and industrial applicability across all technological fields are patentable.

The 1968 law explicitly required inventions to be industrial, though not expressly stated in the 1844 law, it was implicit. Therefore, there is an invention requirement. Industrial creation can be a product (a specific body with a mechanical composition or chemical structure distinguishing it from others) or a process (a system involving chemical or mechanical agents whose implementation results in obtaining a material object or an intangible effect). The result itself is not protectable. The process is protected only in its form, function, and application. An already-known means can be used in a new application, but the protection will be for the application, not the means. The arrangement of means can also be patented.

Only inventions are patentable. An invention is a technical solution to a technical problem using repeatable technical means. Discoveries, scientific theories, and mathematical methods are generally not patentable. However, the European Patent Office, in the “Hitachi” case regarding an online auction system, held that the technical nature of the device implementing a method benefited the method itself, making a purely intellectual method patentable if presented with some technical means.

French law expressly excludes software from patentability due to practical considerations in determining the state of the art in this field, as well as strategic considerations regarding the dominance of the American industry. Nevertheless, the laws of 1968 and 1978 did not prohibit patenting processes involving software. The European Patent Office has recognized the patentability of a process implemented under software control, contributing technically to a field not excluded from patentability.

Certain inventions are excluded from protection, including therapeutic or surgical treatment methods, diagnostic methods, inventions contrary to human dignity, public order, or morality. European law has excluded inventions contrary to human dignity. Interpretation is broad, as the European Patent Office has determined that public order covers the protection of public interest and individuals’ physical integrity as members of society. Thus, inventions whose implementation risks disturbing public peace or social order or seriously harming the environment are excluded from patentability. It is also prohibited to patent the human body or the discovery of any of its elements. Human cloning processes, processes for modifying human genetic identity, and the use of human embryos for industrial or commercial purposes are also prohibited. Animal breeds and plant varieties are also excluded.

An invention must be industrially applicable, meaning it can be manufactured or used in any industry (including agriculture).

An invention must meet the novelty requirement, meaning it is not included in the state of the art. The state of the art includes everything made available to the public before the patent application filing date through written or oral description, use, or any other means. Novelty must be absolute. The public includes anyone not bound by confidentiality regarding the information received. Thus, a person under a confidentiality agreement is not considered part of the public. It may be useful to include a confidentiality clause in an employee’s employment contract. Disclosure examination requires the invention to be disclosed sufficiently for a person skilled in the art to realize it, and the relationship of the skilled person to the invention must be sufficiently characterized by theoretical knowledge of the invention. Disclosure does not require it to be made known to a specific person; it only needs to be made accessible.

Disclosure conditions are irrelevant. Disclosure can result from a conference, commercialization, publication (even on a social network), prior patent, etc. The author of the disclosure is irrelevant, and it does not matter if the disclosure is made by the inventor. However, the European Patent Office grants patents for “the application of a substance or composition to obtain a medicinal product for a specific, new, and inventive therapeutic use.” Regarding combinations, case law holds that the novelty of a combination invention can only be challenged by prior art involving an identical combination.

It is up to the opponent to prove the existence of prior art by any means. Evidence can be provided through invoices, deliveries, meeting minutes, testimonies, etc. The burden of proof must be beyond a reasonable doubt. However, the technical board of appeal of the European Patent Office has recently shifted its practice to adopting the balance of probabilities criterion.

The activity must be inventive. The state of the art considered is the same as for novelty. However, it does not consider French, European, or international patent applications designating France that have not yet been published at the filing date. The risk of double patentability is normally eliminated after examining the novelty of the invention. It is possible to associate multiple sources to demonstrate that an invention lacks inventiveness. However, a person skilled in the art is not expected to know the entire state of the art. This person, acting as an abstract character, also plays a role in examining the sufficiency of the description. He is a professional in the field where the technical problem is solved and posed by the invention. When the invention concerns multiple technical fields, the judge defines a very specific profile of the skilled person’s skills. The judge may also conclude that it is a team. The skilled person is neither mediocre nor brilliant and in any case, does not possess any inventive capacity. He has the necessary intellectual qualities for the application of the technique and has the normal theoretical and practical knowledge of the relevant technique.

Thus, what does not go beyond the normal progress of the technique but merely follows logically and manifestly from the state of the art, i.e., what does not require a qualification or skill beyond what can be expected from a person skilled in the art (European Patent Office, Examination Directive, Part G), is considered obvious and cannot be patented. The European Patent Office has adopted a method called “problem-solution”. It is divided into three phases:

  • First, it involves determining the closest state of the art;
  • Second, it requires establishing the objective technical problem to be solved;
  • Finally, it requires examining whether the claimed invention, starting from the closest state of the art and the objective problem, would have been obvious to a person skilled in the art.

The French judge adopts a similar method without using the concept of the closest state of the art. Determining the closest state of the art requires finding a document disclosing an object with characteristics similar to those of the invention (meaning the document must apply the least functional and structural modifications and the project was designed for the same purpose or aimed to achieve the same objective as the claimed invention). It is then necessary to determine the objective technical problem and then to search for the obviousness or non-obviousness of the solution. The fact that the invention consists of means equivalent to those of the state of the art is generally a sign of lack of inventive activity.

The law firm remains at your disposal for any questions you may have.

Useful links:

WIPO : Patents (wipo.int)

EU Website : Patent protection in the EU – European Commission (europa.eu)

NEW YORK TIMES : Can A.I. Invent? – The New York Times (nytimes.com)