Application invention (invention d’application)

An application invention consists in using already known means for a new purpose, to obtain a result those means had never produced. The inventor does not create a new product or a new process: the inventor discovers a new function or use of an existing object. The application invention is patentable where the claimed application is new and was not obvious to the person skilled in the art.

The conditions of the application invention

First, the means employed must be used in conditions different from those known, or for a different result. The mere use of a known means for the function already recognised for it is not an invention. Second, the new application must involve an inventive step: it must not follow in an obvious manner from the state of the art. Third, the protection granted is limited to the claimed application. The holder cannot prohibit previously known uses of the same means. The provisions can be consulted on Légifrance.

The new therapeutic application

The pharmaceutical field offers the most important example. A known substance may be patented for its first use in a method of treatment, then for any later therapeutic use, provided that use is new and inventive. The European Patent Convention expressly admits this in Article 54, through product claims limited to a specific use. French law contains an equivalent provision. These second medical use patents raise particular questions of plausibility and infringement, notably where a generic medicine is marketed for other indications. The examination rules appear on the website of the European Patent Office.

Key points

In practice, the application invention is claimed in the form of a use claim or, in pharmaceuticals, a purpose-limited product claim. Proving infringement requires showing that the competitor’s product is intended for the patented application, which points to the leaflets, the packaging and prescription practices. The firm acts in these disputes, as presented on the page pharmaceutical patents and regulation and in the entry invention.