When an inventor or a company develops a technical innovation, a crucial question quickly arises: should the invention be patented, or should its secrecy be preserved? Although complementary in certain cases, these two means of protection are based on diametrically opposed logics. To patent is to disclose. To keep secret is to reveal nothing. So, is it possible to reconcile patent and confidentiality? And above all, what are the risks of disclosing an invention too early ?<\/p>\n
A patent is an industrial property title issued by a national office (such as the INPI in France) or a regional office (the EPO in Europe), which confers on its holder a monopoly on the exploitation of an invention for a maximum period of 20 years. To be patentable, an invention must meet three fundamental criteria :<\/p>\n
To obtain a patent, the inventor must file a dossier including a full description of the invention, claims (the protected elements), an abstract, and possibly drawings. This file is published, generally 18 months after filing, making the invention accessible to all<\/strong>. This transparency is the counterpart of the exclusive right granted by the patent.<\/p>\n So you can't patent an invention and keep it secret at the same time. A patent requires detailed disclosure, which will eventually be made public.<\/p>\n In European law, the criterion of novelty is very strict. Any disclosure, even by the inventor himself, before the patent is filed, is an obstacle to its grant. This means that :<\/p>\n can be enough to destroy novelty, and therefore the possibility of protecting the invention by patent.<\/p>\n In principle, any disclosure of an invention prior to the filing of a patent application precludes its protection, since this would result in the loss of the novelty criterion. However, two exceptions provided for by the European Patent Convention (Article 55 EPC) and the French Intellectual Property Code (Article L.611-13 CPI) enable patentability to be preserved in exceptional cases.<\/p>\n The first concerns disclosures resulting from clear abuse of the applicant's rights<\/strong>, such as breach of a confidentiality agreement, information leakage or data theft. In such cases, the inventor can still file his patent application, provided he does so within six months of the disclosure.<\/p>\n The second exception concerns disclosures made in the context of a recognized international exhibition<\/strong>, on condition that this is declared at the time of filing and that a certificate issued by the organizers is provided. Here again, a maximum period of six months applies.<\/p>\n These exceptions are strict and difficult to invoke, since they require concrete proof and strict adherence to deadlines. They should not be seen as an implicit authorization to communicate about one's invention before filing. In practice, the rule remains simple: as long as the patent has not been filed, no disclosure should take place without a secure legal framework.<\/p>\n Before talking about your invention to a third party (investor, partner, service provider), remember to have a confidentiality agreement (NDA) signed. Above all, register your patent before any public communication. Once filed, you are free to disclose your invention<\/strong> : your rights are fixed at the date of filing.<\/p>\n In contrast to patent, secrecy protection is based on non-disclosure of the invention. It requires no filing, no formalities, and no cost. It can last indefinitely, as long as the secret is kept. But this form of protection also has serious limits :<\/p>\n In court, it is difficult to act without solid proof of the breach of secrecy. This is why secrecy relies on robust contractual mechanisms (confidentiality clauses, internal policies, IT security).<\/p>\n In short, you can't obtain a patent while keeping your invention secret. The patent system is based on a balance between public disclosure and legal protection. Keeping an invention secret and protecting it at the same time with a patent is therefore incompatible. Lorsqu\u2019un inventeur ou une entreprise met au point une innovation technique, une question cruciale se pose rapidement : faut-il breveter l\u2019invention ou au contraire en pr\u00e9server le secret ? Ces deux voies de protection, bien que compl\u00e9mentaires dans certains cas, reposent sur des logiques diam\u00e9tralement oppos\u00e9es. Breveter, c\u2019est divulguer. Garder le secret, c\u2019est ne rien […]<\/p>","protected":false},"author":3,"featured_media":10665,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[29],"tags":[],"class_list":["post-10631","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-brevetabilite"],"acf":[],"yoast_head":"\nThe dangers of disclosing too early: a risk to patentability<\/h2>\n
The absolute novelty rule<\/h3>\n
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Rare exceptions<\/h3>\n
Best practices<\/h3>\n
Secrecy : an alternative to patenting<\/h2>\n
A strategic choice<\/h3>\n
\nThe secret is particularly suitable for :<\/p>\n\n
The limits of secrecy<\/h3>\n
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First patent, then communication<\/h2>\n
\nBut that doesn't mean you always have to disclose everything: as long as you haven't filed, discretion is essential. Each situation deserves a strategic analysis, based on your objectives, the nature of the invention and your ability to guarantee confidentiality.<\/p>","protected":false},"excerpt":{"rendered":"