Understanding how to protect an innovation
Protecting an invention means ensuring that your R&D efforts will not be copied or exploited without authorization. In France, the patent is often considered the reference tool. However, there are other, sometimes more flexible means of protection, such as utility certificates (also known as utility models in the international arena) or trade secrets.
Each of these legal instruments has its strengths, its limitations, and above all its strategic uses. So, can we really consider substituting a utility model or a trade secret for a patent? It all depends on needs, context and type of innovation.
Patents: the standard for industrial protection
A powerful exclusive right
A patent confers a 20-year monopoly on its holder. In exchange, the inventor must publicly disclose his invention in a description clear enough to allow reproduction..
This system is based on a balance: society benefits from knowledge, the inventor benefits from an exclusive right. This right is enforceable against all parties, including those who have independently developed the same invention.
A demanding legal tool
But this protection comes at a cost: in addition to filing and maintenance fees, you have to incur expert fees to demonstrate novelty, inventive step and industrial applicability. You also have to accept that the innovation will be made public 18 months after filing. Consequently, for certain projects - particularly those with a short life cycle, or where profitability is uncertain - patenting may seem excessive.
The utility model: a fast, affordable "mini-patent
What is a utility certificate ?
The utility certificate, although still little used in France, is an industrial property title issued by the INPI, just like the patent. It protects a technical invention and grants an exclusive right for 10 years, but is obtained via a simplified procedure, with no initial substantive examination or search report.
In other words, you get a title faster, and for less. This can be enough to dissuade competitors, as well as enhancing the value of the invention (communication, partnerships, fund-raising).
For which situations ?
The utility certificate is particularly relevant in three cases :
– Short-lived inventions : in digital technology or connected objects, where products become obsolete within a few years.
– Uncertain inventions : when patentability is in doubt, but you want to protect them quickly.
– Flexible strategies : the certificate can be converted into a patent application within 16 months of filing. This allows time for strategic adaptation.
As the Ministry of Finance points out in its note on the PACTE reform, the utility certificate is a "particularly useful tool for SMEs".
Limits of the utility model
But beware, a utility certificate is not a cheap patent : it is not recognized internationally (no PCT, no EPO equivalent), and its lack of substantive examination makes it more vulnerable to litigation. In fact, before any infringement action can be taken, an a posteriori search report must be drawn up.
In short, it's a strategic, flexible and cost-effective tool, but limited in geographical and legal scope.
Business secrecy : protection through discretion
Protection without formalities
Unlike patents and utility certificates, trade secrets require no formalities. It costs nothing and can last indefinitely, as long as the secret is preserved. It is therefore perfectly suited to certain situations :
- Invisible manufacturing processes (algorithms, industrial recipes, in-house methods),
- Inventions not detectable by end-users,
- Deposit or maintenance costs deemed too high,
- Very short operating time.
A risky strategic choice
But this protection is based on one major condition: secrecy. A leak, human error or independent discovery by a third party, and the protection is lost, with no possible recourse.
What's more, secrecy does not grant a legal monopoly. If a competitor comes up with the same solution on his own, he is free to exploit it.
Finally, enforcing a trade secret in court is complex, because you have to show :
- That it was indeed confidential information,
- That it had commercial value,
- That it has been subject to reasonable safeguards.
This requires solid contracts (NDAs, confidentiality clauses), strict internal protocols and rigorous cybersecurity.
Can we really do without a patent ?
Patent, utility certificate or secret: a matter of strategy
The choice between these three types of protection is not exclusive. A single project can mobilize several instruments :
- Patents for visible inventions with high value-added potential,
- Certificat d'utilité (utility certificate) for rapid innovations or innovations with uncertain profitability,
- Trade secrets for confidential or unpatentable processes.
Each offers a different balance between cost, duration, scope, legal certainty and visibility.
Choose wisely
Giving up on patenting isn't always a mistake. In some cases, it may even be the best option. But it must be done consciously, with a clear strategy.
If your invention can be easily detected or copied, a patent is essential.
If it is difficult to reproduce, costly to patent or short-lived, a utility certificate or trade secret may be a viable alternative.
In all cases, never neglect the importance of support from a professional in intellectual property law. After all, it's not just your titles that will determine the success of your innovation.