Description

The description of the patent is the part of the application that discloses the invention in a manner sufficiently clear and complete for a person skilled in the art to carry it out. It is the counterpart of the monopoly: in exchange for the exclusive right, the inventor enriches the state of the art through the disclosure of the invention. The requirement is laid down by Article L. 612-5 of the French Intellectual Property Code and Article 83 of the European Patent Convention. The description also serves as the basis for construing the claims.

The content of the description

First, the description states the technical field of the invention and the prior art known to the applicant, with the relevant documents. Second, it sets out the technical problem the invention proposes to solve and the solution provided, describing the invention in its essential features and in at least one detailed embodiment, supported where appropriate by drawings and examples. Third, it indicates the way in which the invention is capable of industrial application, where this is not apparent from its nature. The drafting rules are detailed on Légifrance and on the website of the European Patent Office.

The role of the description in litigation

The description does not define the scope of protection, which belongs to the claims, but it serves to construe them. The court draws from it the meaning of the technical terms, the function of each feature and the problem solved, which is decisive for the assessment of infringement by equivalence. The description also fixes the content of the application as filed, beyond which no later amendment is allowed. It is finally the basis of any limitation request, since the new claims must find support in it.

The sanction of insufficiency

Where the description does not allow the person skilled in the art to carry out the invention without undue burden, the patent is exposed to revocation for insufficiency of description. This ground is frequently raised in chemistry and biotechnology, where the claimed effect must be made plausible by the application itself. In practice, the quality of the description conditions the strength of the title throughout its life. The firm analyses these questions in revocation and infringement actions, as presented on the page patent nullity action.