Technical character

Technical character is the quality an invention must possess to be patentable: it must provide a technical solution to a technical problem, through the implementation of technical means. The requirement is not expressly stated by the statutes, but it follows from the very notion of invention and from the exclusions laid down by Article L. 611-10 of the French Intellectual Property Code and Article 52 of the European Patent Convention. Technical character distinguishes the invention from abstract, aesthetic or intellectual creations.

Assessing technical character

First, the invention must belong to a technical field and produce a technical effect, that is, a modification of the physical world or of the operation of a technical system. Second, the presence of a technical means in the claim, even a commonplace one, is enough to give the claimed subject matter the quality of an invention. Third, the question of technical character then shifts to inventive step: only the features that contribute to the technical character of the invention are taken into account in assessing whether it is obvious. The examination guidelines of the European Patent Office detail this method.

Technical character and the exclusions

Discoveries, scientific theories, mathematical methods, aesthetic creations, intellectual or business methods, computer programs and presentations of information are excluded as such, because they lack technical character. They become patentable again when they are integrated into a computer implemented invention or into an industrial process that produces a further technical effect. An algorithm is thus not patentable, but its application to signal processing or to the control of a machine may be. The provisions can be consulted on Légifrance.

Key points

In practice, demonstrating technical character is decisive for software inventions, data processing methods, artificial intelligence and innovations at the border between technology and business. The drafting of the application must highlight the technical problem solved and the effect obtained. The firm acts on these questions of patentability in revocation and infringement actions, as presented on the page patent litigation.