Grant of a patent

The grant of the patent is the decision by which the competent office accords the requested title and publishes the mention of that decision. It marks the end of the examination procedure and the beginning of the legal life of the patent as an enforceable title. In France, the grant of the patent falls to the INPI. For the European patent, it falls to the European Patent Office.

The steps of grant in France

First, the patent application is filed with a description, claims and, where appropriate, drawings. Second, the INPI draws up a preliminary search report citing the relevant prior art, to which the applicant may respond by amending its claims. The application is published eighteen months after filing or priority. Third, the INPI grants the patent and publishes the mention of grant in the Official Bulletin of Industrial Property. Since the PACTE Act, the INPI may refuse an application for lack of inventive step, which strengthens the robustness of granted titles. The provisions can be consulted on Légifrance.

The grant of the European patent

Before the EPO, substantive examination is conducted by an examining division. Where the application satisfies the requirements of the Convention, the division notifies the applicant of the text in which it intends to grant the patent. After payment of the fees and filing of the translations of the claims, the mention of grant is published in the European Patent Bulletin. From that date, the holder has one month to request unitary effect or, failing that, must validate the patent in each designated state. A nine month period also opens for filing an opposition.

The effects of grant

Grant confers the exclusive right of exploitation and makes it possible to bring a patent infringement action. For the period between publication of the application and grant, the holder may obtain an indemnity, provided it notified the application to the alleged infringer. In practice, the quality of the examination and the drafting of the claims during prosecution condition the resistance of the title in future litigation. The firm acts from that phase onwards, together with patent attorneys, as described on the page patent litigation attorney.

Key points

Grant opens the period in which the title becomes enforceable, but also the period in which it is most exposed: nine months of opposition before the office, then the nullity action. For the holder, it is the moment to decide on unitary effect, national validations and, where appropriate, an opt-out. For a competitor, it is the window in which attacking costs the least.