Understanding the contours of patent protection
Applying for a patent means obtaining an exclusive right to an invention, which can be essential for protecting a technical innovation, enhancing know-how and securing a competitive advantage. However, the subject matter of the application must be "patentable". Patent law, in France as in Europe, sets precise criteria and excludes certain categories of creations. For any inventor, whether an individual or a company, it is therefore crucial to know what can or cannot be protected by a patent.
Conditions for an invention to be patentable
First and foremost, an invention must meet three fundamental conditions: novelty, inventive step and industrial application. These criteria are set out in Article L.611-10 of the French Intellectual Property Code, and repeated in Article 52 of the European Patent Convention.
The invention must be new
The condition of novelty requires that the invention has never been made available to the public before the patent application is filed. Regardless of the form of this disclosure - scientific publication, presentation at a trade show, sale of a prototype, posting online, etc. - if the information is already known, the invention is no longer new. This requirement applies worldwide, regardless of who makes the disclosure. Even unintentional disclosure, or disclosure by the inventor himself, can be an obstacle to patentability. This is why it is essential to keep the invention confidential until it is officially registered.
The invention must involve an inventive step
This criterion is designed to rule out technical solutions which, although novel, appear obvious to a professional in the field. The invention must therefore be distinguished in a non-trivial way from what is already known. It cannot simply be an adaptation, improvement or combination of already existing techniques, unless this combination produces an unexpected technical effect.
The assessment of inventive step is based on the hypothetical viewpoint of a specialist in the field concerned, referred to in law as the " skilled person ". In practice, many disputes concern this criterion, rather than that of novelty.
The invention must be susceptible of industrial application
Finally, to be patentable, the invention must be capable of being manufactured or used in an industrial sector, in the broadest sense of the term. This includes all fields of production of goods or services, including agriculture, pharmaceuticals and information technology. Conversely, ideas that are purely theoretical, abstract or speculative, with no concrete technical implementation, cannot be protected.
Inventions excluded from patentability
Even if an invention meets all three of the above criteria, it may be excluded from patent protection for reasons of lack of technicality, or because of public policy, ethical or health considerations. These exclusions are provided for in articles L.611-16 to L.611-19 of the French Intellectual Property Code.
Some creations are not considered inventions under patent law. These include scientific discoveries, mathematical theories, laws of nature, logical methods, computer programs "as such" (i.e. without any concrete technical effect), administrative organization methods, games, management techniques or even purely aesthetic creations such as design with no technical function.
Other exclusions are designed to protect ethics, human dignity or public health. Surgical, therapeutic or diagnostic methods applied to the human or animal body, the use of human embryos for industrial or commercial purposes, gene sequences with no technical application, and plant varieties and animal breeds obtained by natural cross-breeding are all excluded from patentability.
Patents can therefore only be granted for inventions that are technical, concrete and socially acceptable.
Broad categories of protectable inventions
Although the law does not formally distinguish between types of patentable inventions, practice and doctrine identify several categories that help to understand the scope of protection and to draft claims. These include product, process, application and combination inventions.
Product invention
This is the most classic form: the invention concerns a material object or substance, be it a tool, an electronic device, a drug, a material or a chemical compound. The product must be new, present an inventive step, and be capable of industrial reproduction. It is protected as such, independently of its use. If the product is to be integrated into an already protected product, it is sometimes necessary to file an improvement patent, with the authorization of the original patent holder.
The process invention
This category covers the technical means used to obtain a product or result. This may be a manufacturing method, a purification process, a production technique or an experimental protocol. In this case, the protection relates to the operating method itself. In French law, a distinction is sometimes made between processes defined in general terms (by their function) and those described in precise terms (by their technical characteristics). A process does not necessarily preclude obtaining the same result by another means, unless that result is protected as a product.
Application invention
It is the new and inventive use of a product or means already known. It is not the product itself that is new, but its use in a new field or for a new technical effect. For example, a known drug may be the subject of a new patent if its efficacy is discovered in a different therapeutic field. Protection then relates exclusively to this specific application.
The combination invention
This category is based on the original combination of several known elements. What is protected is not each element taken in isolation, but their new and functional interaction. To be patentable, this combination must produce a superior or unexpected overall technical effect compared to the simple addition of the individual effects. If the elements are simply juxtaposed without technical synergy, the invention will be rejected.
The essential foundations for an effective innovation protection strategy through patents
Knowing what is patentable is the first step in building an effective innovation protection strategy. The criteria of novelty, inventive step and industrial application are the foundations of patent law, but they are not enough: the invention must not be excluded by law, either technically or ethically.
Understanding the typology of product, process, application and combination inventions enables you to structure your application and define its scope. A sound knowledge of these concepts is essential for any project owner wishing to secure his or her rights to an innovation.
Finally, given the complexity of the rules and the strategic importance of a patent, it is advisable to seek the assistance of a patent attorney or specialized lawyer. This expertise not only optimizes your chances of obtaining a valid patent, but also guarantees effective, long-term protection.