Invention concept

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Chapter 1. Definition

The code does not give a definition of what it means by "invention".

Contrary to what one might think, an invention is not necessarily innovative.

An invention is often considered to be a technical solution to a technical problem (INPI Examination Guidelines, IC-VII 1).

This is very vague ...

To help us, the legislator sought to define this concept in a hollow.

Chapter 2. Exclusion of the concept of invention

Section 2.1. Principle

Are excluded from patentability (L611-10 CPIparagraph 2), if they are caught as such :

• discoveries as well as scientific theories and mathematical methods;
• aesthetic creations;
• plans, principles and methods:
  • in the exercise of intellectual activities,
  • in gaming, or
  • in the field of economic activities,
• computer programs;
• information presentations.

But only if they are caught as such (and there is all the difficulty, L611-10 CPI, paragraph 3): thus, if any of these elements include an additional technical element, it may be patentable!

Let's detail each of these exclusions for more details.

Section 2.2. Discoveries, scientific theories and mathematical methods

2.2.1. discoveries

1) Principle

A discovery is an observation of a pre-existing natural phenomenon. Thus, the mere discovery of a new property of a known material or object is not patentable (L611-10 CPIparagraph 2-a and INPI Examination Guidelines, IC-VII 1.1).

Nevertheless, using a discovery for a practical application can be considered an invention (INPI Examination Guidelines, IC-VII 1.1 and Paris District Court, July 3, 2014). :

• a train transom constructed of a known material, but whose very good impact resistance has just been discovered;
• a method for obtaining an existing product in the natural state.

2) Special case of biological material

A biological material is a material that contains genetic information and can reproduce or be reproduced in a biological system (L611-10 CPIparagraph 4).

This material or a process for the manufacture of this material may be patentable provided that there is an industrial application (L611-10 CPIparagraph 4).

3) Special case of gene sequences

The mere discovery of a gene can not give rise to a patentable invention (L611-18 CPI).

Nevertheless, an application of this gene can be patented "to the extent necessary for the realization and operation of this particular application” (L611-18 CPI).

2.2.2. Scientific theories

A scientific theory is simply an intellectual activity: it is not an invention (L611-10 CPIparagraph 2-a).

Nevertheless, the application of this theory to a new product may be patentable: new semiconductor devices and their manufacturing processes may be patentable even if the superconductivity theory is not patentable (INPI Examination Guidelines, IC-VII 1.2).

2.2.3. Mathematical methods

If a mathematical method (such as a rapid division method or an electrical filtering method) is not patentable (L611-10 CPIparagraph 2 (a), a machine implementing it may beINPI Examination Guidelines, IC-VII 1.3).

Again, if a mathematical method is not patentable as such, the application of mathematical tools to a concrete situation can be (eg method of calculating a price of a taxi ride, Court of Appeal of Paris, 1st c., Sect. G, solemn hearing, February 18, 2004in that case, the Court held that the claimed invention constituted the technical solution of a technical problem by permitting the determination of the correct price of the race, even though that determination consisted only of mere data manipulation).

Section 2.3. Aesthetic creations

2.3.1. Principle

Artistic creations are not patentable (L611-10 CPIparagraph 2 (b).

Indeed, they already have specific protection: they are already protected by copyright, drawings and models (INPI Examination Guidelines, IC-VII 1.4).

2.3.2. Non-patentable aesthetic effect

For example, a flexible disk envelope characterized by its color avoiding fingerprint marking is considered purely aesthetic: this envelope is therefore not patentable (INPI Examination Guidelines, IC-VII 1.4).

2.3.3. Technical elements for obtaining a patentable aesthetic effect

For a claim to be considered an invention despite an aesthetic effect, the aesthetic effect must be obtained by a process or a technical means (INPI Examination Guidelines, IC-VII 1.4).

This is normal, since design protection is thenL511-8 CPI, 1 °).

This may particularly be the case forINPI Examination Guidelines, IC-VII 1.4):

• the tread design of a tire;
• a fabric to which a texture having a number of layers gives an attractive appearance;
• a book characterized by a technical peculiarity of binding or gluing the back;
• a painting characterized by the type of canvas, the pigments or binders used.

Section 2.4. Intellectual or commercial plans, principles and methods

An abstract method (not allowing to obtain an industrial result) is not patentable (L611-10 CPIparagraph 2 (c).

This is particularly the case forINPI Examination Guidelines, IC-VII 1.5):

• a teaching method;
• rules of play (even if technical elements intervene incidentally, not independently of the rules, INPI Examination Guidelines, IC-VII 1.5.b);
• a commercial method of sale (even if this method would be implemented by computer, INPI Examination Guidelines, IC-VII 1.5.c, because the desired effect is non-technical, Court of Appeal of Paris, ch.04, sect. B, January 10, 2003);
• a brokerage device implemented by computer, the device not being described on a technical level (Rennes Court of Appeal, 2nd c. com., October 7, 2003);
• a method for insurance companies to verify the use made by policyholders of amounts paid as compensation (Court of Appeal of Paris, 4th ch., Sect. A, March 15, 2006);
• etc.

Adding a "server"Does not further give the system a technical character, if this server is a" classic "server with no specific characteristics (Court of Appeal of Paris, 4th ch., Sect. A, March 15, 2006).

However, an invention has a technical character (ie not purely intellectual) as soon as it provides an immediate technical result (Paris District Court, 3rd Division, 2nd Sect., 1 February 2008).

Section 2.5. Computer programs

Exclusion on computer programs (L611-10 CPIparagraph 2 (c) is in fact the source code of those programs which is protected by copyright (INPI Examination Guidelines, IC-VII 1.6).

However, if the computer program has a technical effect, this program can be patented (INPI Examination Guidelines, IC-VII 1.6).

The computer programpatentable"May have as its object (INPI Examination Guidelines, IC-VII 1.6):

• the control of an industrial process;
• data processing representing physical entities;
• Improving the internal functioning of the computer (eg data compression, accelerating calculations, etc.)
• Improving data security
• etc.

Section 2.6. Presentation of information

The mere presentation of information is not patentable (L611-10 CPIparagraph 2-d).

This exclusion carries (INPI Examination Guidelines, IC-VII 1.6):

• on the presentation of information itself (eg a sound, a correspondence table, a music notation system);
• on the supports only characterized by the information carried.

The Paris Court of Appeal clarified this notion: a presentation of information means a presentation characterized by its ability to transmit information, thus concerning both their cognitive content and the way in which they are presented (Cour d & #8217; appel de Paris,, Pôle 5, 1re ch., May 21, 2019, RG n ° 18/19669).