Patent revocation

Patent revocation is the court decision that deprives the title of all effect, in whole or for certain claims only. It sanctions a patent that should not have been granted. For French patents and the French parts of European patents, the Paris Judicial Court pronounces it. The Unified Patent Court, for its part, rules on unitary patents and on European patents without an opt-out.

The grounds for revocation

Article L. 613-25 of the French Intellectual Property Code lists the grounds of invalidity exhaustively. First, lack of patentability: absence of novelty, of inventive step or of industrial application, or subject matter excluded from patentability. Second, insufficiency of description, where the person skilled in the art cannot carry out the invention from the patent. Third, extension of the subject matter beyond the content of the application as filed, as well as extension of the protection after limitation. Article 138 of the European Patent Convention adopts the same grounds. The text of the Code is available on Légifrance.

Procedure and effects

The claimant seeks revocation through a nullity action as a main claim. It may also file a counterclaim for revocation in response to an infringement action. Since the PACTE Act, no limitation period applies to this action.

Revocation may be total or partial. In the second case, the court revokes only the invalid claims. The decision has absolute and retroactive effect. The patent is therefore deemed never to have existed. That retroactivity however preserves final decisions and contracts previously performed. The final decision is recorded in the National Patent Register.

Key points

In practice, the risk of revocation must be assessed before any filing, any writ and any acquisition of a title. The holder may moreover reduce that risk through a limitation of the patent. The firm argues nullity actions for claimants and defendants alike, before the Paris Judicial Court, the Paris Court of Appeal and the UPC, as presented on the page patent nullity action.