Public domain

The public domain refers, in intellectual property, to all creations, inventions and signs that are not, or are no longer, protected by an exclusive right and may therefore be freely exploited by anyone. A creation enters the public domain on expiry of the term of protection, through lapse or revocation of the title, or because it never met the conditions of protection. The public domain is the counterweight of the temporary monopoly granted to the holder.

Entry into the public domain for each right

First, the patent falls into the public domain twenty years after filing, or earlier in case of non-payment of the annuities or surrender. The supplementary protection certificate may extend the protection of medicinal and plant protection products by at most five years. Second, the design is protected for a maximum of twenty-five years. Third, the economic rights of authors last seventy years after the author’s death, moral rights remaining perpetual. Finally, the trade mark may be renewed indefinitely, but it falls into the public domain if it is not renewed, if it is revoked for non-use or if it becomes generic. The provisions can be consulted on Légifrance.

Matter falling by nature within the public domain

Ideas, concepts, methods, scientific theories, discoveries and raw information are free for all. They cannot be appropriated, even by a filing. An invention disclosed before any filing loses its novelty and can no longer be patented: it belongs to the public domain. Likewise, a technical feature disclosed in a patent but not claimed may be freely exploited.

Key points

In practice, exploiting an element of the public domain remains subject to other limits. Copying a product whose patent has expired may constitute parasitism if it involves capturing the investments of another or a likelihood of confusion. Moral rights, trade marks and trade secrets continue to apply. The expiry date of a title must therefore be verified with care and the freedom to operate study must cover all the rights involved. The firm advises on these questions, as presented on the page patent litigation attorney.