Discovery

A discovery is the revelation of a phenomenon, a property, a substance or a law that already existed in nature but was unknown. It differs from the invention, which is the creation of a technical solution to a technical problem. A discovery is not patentable as such: Article L. 611-10 of the French Intellectual Property Code and Article 52 of the European Patent Convention expressly exclude it, together with scientific theories and mathematical methods.

The reason for the exclusion of discoveries

First, a discovery adds nothing to the state of the art in the sense of a solution: it enriches knowledge. Second, granting a monopoly over a law of nature or an existing property would block all further research based on that knowledge. Third, a discovery does not meet the condition of industrial application where it is not accompanied by a specific technical use. Fundamental scientific knowledge thus remains free for all and belongs to the public domain. The provisions can be consulted on Légifrance.

The patentability of the application of a discovery

The exclusion concerns the discovery only considered as such. The technical application of a discovery may constitute a patentable invention. A person who discovers that a known material possesses an unsuspected property cannot patent that property, but may patent a device or a process that takes advantage of it. Likewise, a substance isolated from its natural environment or produced by a technical process may be patented, even if it pre-existed in nature, provided its industrial application is disclosed. That border is at the heart of the debates on biotechnology, gene sequences and micro-organisms, framed by special provisions of the Code and by the examination guidelines of the European Patent Office.

Key points

In practice, characterisation as a discovery is a ground of invalidity raised against patents that claim a natural phenomenon rather than its technical exploitation. The drafting of the claims must therefore bear on the product, the process or the application, not on the knowledge itself. The firm acts on these questions of patentability, as presented on the page patent nullity action.