First, the invention must meet the requirement of novelty: it must not already be in the state of the art, i.e., it must not concern an invention that has already been made public, regardless of the author, the means, the date, or the place of publication. Although Article L611-13 of the French Intellectual Property Code provides for some exceptions (disclosure 6 months before filing, prior filing by the inventor, participation in an exhibition, etc.), the novelty criterion entails two considerations:
- If the inventor discloses his/her invention before applying for a patent, the novelty condition will no longer be met. It is therefore important to keep secret an invention from third parties, within the company, and from economic partners. In the context of negotiations, it is recommended that a confidentiality agreement be concluded, and that proof of creation and any further developments be obtained in parallel, for example through our Copyright.eu service (see our article: Protecting an invention with a patent).
- If a similar invention exists, the risk is that the patent application will be refused and/or that the applicant will become an infringer. It is therefore important to check for existing inventions before filing. National institutions such as the French National Institute of Industrial Property (INPI) offer tools and strategies for prior art searches, and it is also possible to be accompanied by an Industrial Property Attorney or a qualified lawyer.
Secondly, the invention must be susceptible of industrial application: it must be capable of being manufactured and/or used in industry.
Finally, the invention must be the result of an inventive step: it must not be derived from the state of the art. It must not be known to the “person skilled in the art”, i.e., a person who is normally competent, experienced, and fully familiar with the state of the art. The most commonly used example is that of the rubber pencil: let us assume that it is a new invention, it is a technical solution which answers a technical problem, plus it can be manufactured and used in industry, however, since the pencil and the rubber are already known by people skilled in the art (pencil manufacturers), it is obvious to superimpose a pencil and a rubber to write and erase with the same tool: this type of invention is therefore not patentable.
