Process invention

A process invention is an invention that relates to a way of acting on matter: a sequence of operations, treatments or steps making it possible to obtain a product or a result. It stands in contrast to the product invention, which relates to an object. The process invention is frequent in chemistry, pharmaceuticals, metallurgy, food processing and industrial manufacturing. Its protection is narrower than that of the product, but it extends, under conditions, to the product obtained.

The scope of protection of the process invention

Under Article L. 613-3 of the French Intellectual Property Code, the holder may prohibit the use of the process covered by the patent or, where the third party knows or the circumstances make it obvious that such use is prohibited, the offering of its use on French territory. The protection further extends to the product obtained directly by the process: its offering, placing on the market, use, importation and stocking are prohibited. This extension makes it possible to act against products manufactured abroad according to the patented process and imported into France. The provision can be consulted on Légifrance.

Proving infringement of a process

First, infringement of a process is difficult to prove, because the process is carried out on the infringer’s premises and rarely leaves traces on the product. The saisie-contrefaçon at the competitor’s factory is then the main instrument. Second, Article L. 615-5-1 of the Code reverses the burden of proof: where the patent covers a process for obtaining a new product, any identical product manufactured by a third party is presumed to have been obtained by the patented process, and it is for the third party to prove the contrary. Third, the court takes into account the defendant’s legitimate interest in protecting its manufacturing secrets.

Key points

In practice, the holder of a process invention has an interest, where possible, in also claiming the product, the implementing device and the uses, in order to multiply the angles of attack. The evidence must be organised from the discovery of the infringement, with measures suited to protecting the secrets of both parties. The firm conducts these proceedings, as presented on the page saisie-contrefaçon attorney and in the entry invention.