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Patenting an invention in France

An idea or a concept is unpatentable : only the technical means implemented for putting them in concrete form can be patentable.

Furthermore, pursuant to Article L. 611-10, the following cannot be protected by a patent :

- the discoveries and scientific theories (however their applications can be patentable) ;

- the aesthetic creations (which can be protected by copyright and the design right) ;

- the schemes, rules and methods ;

- the programs for computers (which can be protected by copyright) ; and

- the presentations of information.

These elements can be included in an invention, but they cannot constitute the invention.

To be patentable, the invention must be new, involve an inventive step, and be susceptible of industrial application (i.e. not to be confined to an abstract principle). The two main patentability conditions are the novelty and the inventive step.

The novelty (Article L. 611-11)

An invention is new if it does not form part of the state of the art. Thus, an invention is not new if it is found as a whole in a single prior art reference (and not in a combination of several references).

The state of the art is defined by "everything made available to the public before the date of filing of the patent application, especially by means of a written or oral description or by use".

The author of the disclosure is of little importance in this context. Thus, the novelty of a patent application can be destroyed by a disclosure made by the inventor himself (for example by a scientific publication). There is no grace period for filing a French patent after such disclosure.

The novelty must also be absolute in space. Thus, a foreign patent, even it is not available in French, or an use abroad are able to destroy the novelty of the invention.

We also wish to add that a French patent application or a European or international patent application designating France, as filed but not yet published, constitutes a prior art which has to be taken into account in order to consider the novelty.

If disclosures are necessary, for example to make tests in another company, a privacy agreement is advisable.

Article L. 611-13 of the Industrial Property Code provides that a disclosure does not destroy the novelty if it has occurred within the six months preceding the French filing of the patent application and if it results from the fraudulent disclosure by a third person (for example in defiance of a privacy obligation). However, such a situation will involve an action at law in support of which evidence has to be presented, such evidence being often difficult to establish (such an action is also possible if a third party has fraudulently filed a patent application).

In the case of a disclosure by use, it can be for example a matter of offering for sale with a description of the invention, sending samples or tests conducted outside which reveal the invention to a third person who is not bound by a privacy agreement or who has ignored the privacy obligation.

And it is necessary that the disclosure allow to reveal the invention. If for example the analysis of the product does not reveal the process or if a machine has been visible but its motor, which makes the subject-matter of the invention, was not, there will not be destruction of novelty.

The inventive step (Article L. 611-14)

A new invention however is not necessarily patentable. A second condition of patentability has to be met, namely the inventive step. In other words, a patent cannot be granted to protect what can be deduced in an obvious manner from the state of the art by the man skilled in the art.

Contrary to the novelty criterion, the inventive step is judged on the basis of an obvious or non obvious combination of several elements of the state of the art. Thus for example if the invention consists in a mere juxtaposition of means as described in the different prior art references, there will be no inventive step, because it will be considered as obvious to have put such prior art references together.

The drafting of the patent

Under penalty of nullity of the patent, the invention has to be described in a manner sufficiently clear and complete for it to be carried out by a man skilled in the art (Article L. 612-5). Consequently, the patent application which has normally to lead to the granted patent must have a well-documented specification.

Furthermore, this specification is the support of the claims which are also drafted according to a particular way, because they consist in the text which defines the matter for which the protection is sought (Article L. 612-6).