Patent’s Law

Patent conditions

In order to obtain a patent, the invention must be a new one, vesting an inventive activity and likely to be the object of an industrial application (article L. 611-10, 1°, Code de Propriété Industrielle). “Invention” is not expressly defined by the French law and tends to be understood as a technical term, the finality of the invention being taken into account. The invention can fall under four different categories: it could concern a product, a process, an application or may combine methods that are already known. Any invention shall have a technical application (art. L. 611-10-2° and L. 611-16, CPI).

In the same way, any invention being exploited in a contrary way to human dignity, to the public order, disorderly conduct and any invention based on human body, vegetable variety or animal races shall be excluded from patent in regard to the articles L. 611-17 and the following of the CPI.

Moreover, the invention shall be a new one. It shall not be understand without the technical state being anything that have been open to the public before the date of the patent claim deposit by a written or oral description, use or any other way, either by the owner of by a third party. In addition, the invention shall imply an inventive activity. In that regard, it shall not follow the technical state in an evident way. It has to be a new one and has to improve the technical state by pertinent information. As a consequence, a gap is necessary between the invention and what previously existed. In that matter, the reference is an intermediate technician having general knowledge in the particular field.

Finally, the invention shall benefit from an industrial application. In that regard, its object can be used or manufactured in any industrial concern, being understood as human activity. The invention has to be technically feasible, and shall fit for any industrial application.

Patent effects

A. The inventor’s prerogatives

Articles L. 613-3 and L. 613-4 of the CPI set out the rights attached to the exclusive exploitation rights. Any breach shall be qualified as counterfeit.

Patent gives to the holder a temporary (20 years if he satisfies to the annual installment payment) and territorial (limited to the territory in which the patent has been delivered or limited to the States pointed out in a case of a European claim) monopoly for the invention exploitation. The inventor shall benefit from different rights such as the inventor’s moral right.

In addition, the patent entitles the inventor to an absolute and opposable immaterial property right on the invention. The protection scope is defined in regard to the claim content (product, process, new application and new combination) and to the description dealing with their interpretation.

B. The inventor’s duties

The owner shall pay an annual licence fee and shall exploit the invention.

Regarding the licence fee, this special tax has to be paid each year, the sum being increased in the course of time. The penalty of such a payment is the patent forfeit at the due date of the licence fee not paid. The inventor shall, moreover, exploits the invention. This obligation can either be fulfilled by the inventor himself or by a third party. In the case of failure, any third party shall have the right to claim a licence.

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