Unity of invention

Unity of invention

In order to avoid abuse, the INPI requires that each patent application cover only one invention: this is the very concept of unity of invention.

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Chapter 1. Unity of Invention Fault

Section 1.1. Principle

The unity of invention is provided by the article L612-4 CPI.

The patent application can only concern one invention or a plurality of inventions linked together so that they form only one general inventive concept.

The purpose of this requirement is to efficiently classify inventions and prevent the payment of unique Search fee does not allow to obtain a search for 1000 inventions.

This is understandable enough ...

Section 1.2. Appreciation of the unit

Regarding the assessment of unity of invention, it should be noted that the INPI directives directly refer to this point in section VI-A 3.

For the INPI, in order to verify that the requirement of unity of invention is respected, the presence of an effective technical link between the claims must be verified.

But clearly, the INPI gives no method to verify the existence of this technical link (do you get by with this?).

At most, the code (R612-19 CPI) gives us some examples of what is acceptable in terms of unity of invention:

  • a product, a process for the manufacture of this product, a use of this product;
  • a method, device or means specially designed for carrying out this method;
  • a product, a process specially designed for the manufacture of this product and a device or means specially designed for carrying out this process.

Even worse, INPI directives confuse the prohibition of claims of the same type and the requirement of unity of invention (spoiler alert: it is not the same thing otherwise the legislator would not have started the article R612-17-1 CPI by " without prejudice to the provisions of L612-4 CPI").

In short ...

Finally to conclude, if you want a more reasonable approach, I invite you to read theunity of invention in Europe.

Section 1.3. A priori / a posteriori

Good news, INPI directives also mention this point in section VI-A 2.

1.3.1. A priori

Non-unity a priori is a detectable non-unit without analyzing the validity of the claims with regard to the state of the art.

Thus, the non-unity a priori appears only between independent claims.

1.3.2. A posteriori

Non-unity a posteriori is a detectable non-unit after having analyzed the validity of the claims with regard to the state of the art.

Thus, if Claim 1 is not new (or inventive), and the dependent claims have non-unitary fallback positions, a non-unity objection will be raised. a posteriori (well, I guess, by modeling on European practice, because INPI directives very very succinct).

Section 1.4. Result

1.4.1. Division

If a request is not unitary, it should be split in order to avoid a rejection (L612-12 CPI).

So as these texts are written "with the feet" (with all my respect, of course), let's have a little fun: what happens if you divide a non-unitary request (without paying the taxes, for example ) but that you do not modify the claims of the non-unitary demand (which therefore remain non-unitary)?

Will you have a deliverance? In my opinion, the article L612-12 CPI does not allow a rejection ...

1.4.2. Deletion of certain claims

It would seem quite logical that if we modify the request to eliminate the problem of unity of invention, the INPI does not bother us more ...

Even if I agree on the substance, the texts seem to create a notable uncertainty ...

Indeed, Article L612-4 CPI is in the section "Filing of Applications" and not "Instructions of Applications".

Therefore, this requirement of unity seems to be intrinsic at the time of filing. In addition, the article L612-12 CPI offers only one way of correction: division.

Colleagues then pointed out the article R612-48 CPI : this article provides for a limitation of claims to avoid rejection.

Admittedly, this is textually provided for in Article R612-48 CPI but this last article is a regulatory article whereas the article L612-12 CPI is of a higher hierarchical level.

You will understand: this discussion is mainly philosophical. In practice, if you change your demands to make them unitary, you will not have a problem, eh?

Chapter 2. Prohibition of claims of the same type

Section 2.1. Principle

In principle, it is impossible to file several independent claims of the same type (R612-17-1 CPI).

Section 2.2. exceptions

Nevertheless, this same article R612-17-1 CPI provides exceptions: this is possible if the subject of the request relates to:

  • to several products related to each other,
  • to different uses of a product or device,
  • to alternatives to a particular problem as these alternatives can not be adequately covered by a single claim.

Section 2.3. Sanction

Unless I'm mistaken, this article R612-17-1 CPI , although prescribing a strong ban, can not base a decision of rejection on the part of the INPI.

I do not find any legal basis for this rejection.

It is true that INPI directives mix this concept with the concept of unity of invention (as said before). Therefore, it is very likely that they rely on the article L612-4 CPI to justify a rejection.

It is not very satisfying intellectually.

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