State of the art

The state of the art is constituted by everything made available to the public before the filing date of the patent application, or before the priority date, by a written or oral description, by use or by any other means. This definition appears in Article L. 611-11 of the French Intellectual Property Code and Article 54 of the European Patent Convention. The state of the art is the reference against which novelty and inventive step are assessed.

The content of the state of the art

First, the state of the art is universal: it includes disclosures made in any place, in any language and at any time, including foreign patents, scientific publications, theses, catalogues and websites. Second, it includes public uses, such as the marketing of a product or the presentation of a process during a factory visit not subject to confidentiality. Third, availability to the public is enough: it is not necessary that the public actually took notice of the information. Conversely, information communicated under an obligation of confidentiality is not part of the state of the art. The provisions can be consulted on Légifrance.

Earlier unpublished patent applications

The content of French or European patent applications designating France, filed before the filing date but published only afterwards, is deemed comprised in the state of the art for the assessment of novelty alone. Such applications cannot be relied on to challenge inventive step. The rule prevents the grant of two patents for the same invention while sparing the second applicant, who could not have known of the earlier application.

Key points

In practice, determining the state of the art is the first task of any patent litigation. The party seeking revocation searches for prior art destroying novelty or inventive step and must prove its date and its availability to the public. The patentee disputes the relevance or the date of those documents. The firm conducts these analyses with patent attorneys and technical experts, as presented on the page patent nullity action.

The state of the art is the reference body of information. The prior art entry focuses on specific documents or disclosures identified in a search or a challenge.