Industrial property title

An industrial property title is the instrument issued by a public authority that confers on its holder an exclusive right to exploit an invention, a distinctive sign or a shape. It mainly covers the patent, the utility certificate, the supplementary protection certificate, the registered trade mark, the registered design and the plant variety certificate. In France, the INPI receives filings and grants these titles, with the exception of the plant variety certificate. The European Patent Office (EPO) grants European patents, the EUIPO registers EU trade marks and designs, and the World Intellectual Property Organization (WIPO) administers the international registration systems.

The title as the source of the right

In industrial property, the right in principle arises from a formality. The inventor or creator only has a right to the title, which is exercised by filing, and it is grant or registration that gives rise to the exclusive right enforceable against all. This system contrasts with copyright, which arises from the mere fact of creation, and leaves room for protection without a title, such as the well-known trade mark, the unregistered EU design or trade secrets. The title is territorial, which requires the holder to multiply filings or to use unitary titles to cover several countries. It is limited in time, with the exception of the trade mark, which can be renewed indefinitely for ten-year periods.

Grant and its effect

Grant presupposes an examination whose depth varies between titles and offices. The EPO examines all the patentability requirements. Since the PACTE Act, the INPI has examined the inventive step of patent applications filed on or after 22 May 2020. Trade marks undergo an examination limited to absolute grounds for refusal, earlier rights being invoked by their holders in opposition proceedings, and designs an even more summary review. Grant never makes the title unchallengeable: a patent may be revoked following an opposition before the EPO or invalidated by the court, and a trade mark may be declared invalid or revoked by the court or, since 2020, by the INPI.

The title in litigation

The title is the basis of the infringement action, whose admissibility requires the claimant to prove its existence, its maintenance in force and its ownership. For patents, a published application already allows an action to be brought, but the court stays the proceedings until grant. The defendant usually responds with a counterclaim for invalidity, which turns infringement litigation into litigation over the title itself. Actions relating to titles fall within the jurisdiction of specially designated judicial courts, and the Paris Judicial Court has exclusive jurisdiction in patent matters.

Key points

An industrial property title is the instrument that gives rise to the exclusive right in an invention, a trade mark or a shape, in a given territory and for a given period. It does not guarantee its own validity, which remains open to challenge before the office or the court. Before any action or acquisition, the status of the title on the register, payment of renewal fees, the chain of successive owners and the title’s exposure to an invalidity claim should all be checked.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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