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Patent (« brevet d’invention ») pursuant to French law

What is a “brevet d’invention”?

A “brevet d’invention”, or a patent in English, is an industrial property title issued by the French National Institute of Industrial Property which gives its holder an exclusive right to use an industrial creation for a period of twenty years.

What are the rights conferred to the inventor of a technical creation in France?

The right to a patent belongs to the inventor or his successor in title and is territorially limited to the desired geographical area.

The application can be filed with the INPI for France and the EPO for Europe.

The term of the patent is twenty years from the date of filing of the application and to be patentable, a technical creation must meet three cumulative criteria: novelty, inventive activity and industrial application. Certain types of creations are excluded from protection, such as scientific theories or mathematical methods, aesthetic creations, computer programs and inventions contrary to human dignity, public order and morality.

The owner of a patent has a monopoly on its exploitation and can prohibit third parties from exploiting it, but his rights are limited.

The owner is obliged to exploit the patent within three years and to pay annual royalties to the INPI. The commercialization of the patent can be done through assignment or license agreements, which must be in writing. If the owner does not exploit the patent for three years, a third party can obtain a compulsory license in court. The patent may also be contributed to a company or pledged as collateral.

Inventions by employees or civil servants are governed by a specific regime provided for in articles L 611-7 and seq. of the Intellectual Property Code.

Sanctions incurred for infringement of a patent in France

The exploitation of a patent without the consent of its owner is considered as an infringement and can be sanctioned under civil and criminal law. Article L. 615-2of the French Intellectual Property Code states that the action for infringement is brought by the owner of the patent.

Criminal sanctions are provided for in Article L. 615-14 of the French Intellectual Property Code against any person who "knowingly" commits an infringement, i.e. infringes the rights of the patent owner.

According to article L. 615-1 of the French Intellectual Property Code, any infringement of the rights of patent owners constitutes an infringement likely to engage the civil liability of its author.

As infringement is a legal fact, it can be proved by any means in accordance with the general rules of evidence; article L. 615-5 § 1 of the French Intellectual Property Code states that "infringement can be proved by any means" and article L. 615-5-1-1 of the Code recall that “the court may order, ex officio or at the request of any person having the right to bring an infringement action, all legally admissible investigative measures, even if a seizure of the goods has not been ordered beforehand".

Since 2018, the patent invalidity action is not subject to any statute of limitations (article L. 615-8-1 of the French Intellectual Property Code).

The 2019 PACTE Act (“Loi Pacte”) introduced a right of opposition before the INPI for patents, allowing third parties to request the revocation or modification of a patent by administrative means.

French legal texts governing patents:

- French Intellectual Property Code, art. L. 611-1 and following, R. 611-1 and following.

Main French Court decisions:

- Com. Jan. 23, 2019, No. 17-14.673

- Com. Jan. 31, 2018, no. 16-13.262

- Com. Jul. 5, 2017, no. 15-20.554

- CJEU 16 July 2015, case C-170/13

- CJEU 5 May 2015, Case C-146/13

- CJEU 5 May 2015, case C-147/13

- Com. Feb. 14, 2012, no. 11-14.288

- Com. Nov. 2, 2011, no. 10-23.162

- Com. Oct. 18, 2011, no. 10-24.326

- Com. Sept. 20, 2011, n° 10-20.997

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