Who can apply for a patent in France? This article also covers the vast subject of employee inventions.
Persons who can testify in principle
It's simple: everybody is entitled to file a French patent application.
Thus, there is no nationality requirement contrary to the PCT.
Even an incapable person can file a patent application as long as his or her legal representative performs the acts.
Persons with the right to testify
Nevertheless, if everyone can to file an application that does not mean that everyone have the right to do.
Indeed, the article L611-6 CPI has:
The right of industrial property mentioned in Article L. 611-1 belongs to theinventor or to his having cause.
There is a distinction between three categories of invention for employees (L611-7 CPI).
Inventions are described as mission inventions when they are made (L611-7 CPI, paragraph 1):
- in the performance of an employment contract comprising an inventive assignment (ie general and early employer prescription) which corresponds to the actual assignments of the employee, and / or
- in the context of studies or research that are explicitly (but not necessarily in writing) assigned to him
This last case is often more complex to prove because the prescription of inventing made to the employee is late (for example, during a mission) and the proofs are more difficult to collect.
Here, we are right in the heart of the employment contract. The prescription to invent is made directly by the employer to one of his employees.
In this situation, the right to the title belongs to the employer. This right is automatically assigned to the employer without any action on his part.
Attributable out-of-mission inventions
It is necessary here that the inventions are not of the first category and that they are realized (L611-7 CPI, second sentence, second sentence):
- in the execution of the employee's duties;
- in the area of activity of the company;
- either by the knowledge or the use of the means of the company.
Here we are at the periphery of the employment contract. Indeed, there is no employer prescription for inventing, but it turns out that the employee is inventing something.
In this situation, the employer may, upon express request, be granted the right to the patent. However, this attribution is not automatic.
Non-attributable non-mission inventions
The inventions concerned by this category are all other inventions, not concerned by the above categories (L611-7 CPIparagraph 2, first sentence).
In this situation, the title right belongs to the inventor, quite simply.
Several people carrying out the invention independently of each other
If several persons have made the invention independently of each other, the right to the French patent belongs to the person who files the application first (priority date, L611-6 CPI).
Proof of authorization before the INPI
In any case, during the grant procedure, the INPI will not seek to verify whether the applicant is indeed the person entitled to the patent.
The applicant shall be deemed to be duly authorized (L611-6 CPI).
Plurality of applicants
Where there is more than one applicant, a joint representative must beR612-2 CPI).
For this purpose, it can be (R612-2 CPI) :
- one of the co-applicants
- an agent mentioned below.
The applicant can to be represented by an agent domiciled in a Member State of the EC or the EEC for the filing (R612-2 CPI):
- an Industrial Property Attorney (title regulated by the article L422-1 CPI) the words "patent of invention" (L422-4 CPI together L422-1 CPIlast paragraph);
- a lawyer ;
- a person registered on the special list of the article L422-5 CPI (specialist benefiting from the clause "grandfather", it does not remain much);
- a business or public institution to which the applicant is contractually bound;
- a specialized professional organization;
- a foreign council domiciled in a member state of the EC or the EEC and entitled to act in this state (if it acts before the INPI for occasional).
Unless the agent is an Industrial Property Attorney or lawyer, it is necessary for him to provide power (R612-2 CPIlast paragraph).