Right to the patent

The right to a patent is the right to obtain the industrial property title over an invention. It differs from the patent right, which is the exclusive right of exploitation arising from grant. Under Article L. 611-6 of the French Intellectual Property Code, the right to a patent belongs to the inventor or the inventor’s successor in title. The rule corresponds to Article 60 of the European Patent Convention. The provisions can be consulted on Légifrance.

Allocation of the right to a patent

First, where several persons have made the invention independently of each other, the right to a patent belongs to the one who can rely on the earliest filing date. The French system, like the European system, is a first-to-file system, not a first-to-invent system. Second, where the invention is made by an employee, Article L. 611-7 allocates the right to a patent between the employer and the employee according to whether the invention is a mission invention, an attributable non-mission invention or a non-attributable non-mission invention. Third, in proceedings before the INPI or the EPO, the applicant is presumed entitled to exercise the right to a patent.

The entitlement action

Where a patent has been applied for or obtained either for an invention taken from the inventor or the inventor’s successors, or in breach of a statutory or contractual obligation, the injured person may claim ownership of the application or the title. The entitlement action, provided for in Article L. 611-8, is time-barred five years from publication of the grant of the patent. However, where the holder was in bad faith at the time of grant or acquisition, the period runs from the expiry of the title. A successful action transfers the patent to the claimant, without annulment of the title.

Key points

In practice, disputes over the right to a patent arise from research collaborations, relationships between subcontractors and principals, and departures of employee inventors. They require dating and documenting each person’s contribution. The firm acts on these entitlement questions, upstream through contract drafting and downstream through the entitlement action, as presented on the page employee inventions attorney.