Industrial Property Law

The patent application must set out the invention clearly and comprehensively enough to enable a person skilled in the art to implement it (Article L. 612-5, para. 1, IP Code)  failing which the patent will be invalid (Article L. 613-25, b) IP Code) .
The description of the invention must include the elements listed in Article R. 612-12 of the Intellectual Property Code. It must indicate the techn …

Clear and complete description

The patent application must set out the invention clearly and comprehensively enough to enable a person skilled in the art to implement it (Article L. 612-5, para. 1, IP Code)  failing which the patent will be invalid (Article L. 613-25, b) IP Code) .

The description of the invention must include the elements listed in Article R. 612-12 of the Intellectual Property Code. It must indicate the technical field to which the invention relates and the state of the art, include a description of the technical features of the invention, a brief description of the drawings, a detailed description of at least one way of implementing the invention, and specify the way in which it is susceptible of industrial application if this is not obvious from the description or the nature of the invention (Article R. 612-12 IP Code) . The statement contained in the description must enable the inventor to understand the technical problem posed, as well as the solution provided, and must be completed, where appropriate, by an indication of the advantages of the invention in relation to the prior art . To satisfy the requirement of clear and complete disclosure, it is normally sufficient to provide a single detailed example or embodiment to illustrate how the concept can be put into practice, so that the underlying principles can be understood by the skilled person concerned and the claimed invention can be reproduced by him using his general knowledge without undue burden . 

If the nature of the invention so permits, a different, more intelligible or concise presentation may be made. In addition, the description may include by way of annexes, short extracts from computer programs, lists of nucleotide and/or amino acid sequences, or chemical or mathematical formulas (Art. R. 612-13 IP Code). Where the invention concerns the use of biological material not accessible to the public, a culture of the material must be deposited with a body authorized by the INPI (Art. L. 612-5, para. 2, IP Code).

In general, the requirement of sufficient disclosure is satisfied if the description indicates the means which enable the skilled person, with the skills and knowledge that he is expected to have, the possibility of identifying the technical measures necessary to solve the problem underlying the patent in question and of executing or implementing the invention by simple measures of enforcement, such as routine tests, or by means of reasonable thought .

The description may be supplemented by a drawing. However, elements of the invention which are only drawn and not described are not covered by the patent, unless their shape or arrangement cannot be described in words, on the proviso that, for the representation of their shape or arrangement, the text expressly refers to the drawings .

To assess the sufficiency of the description, the courts must determine whether a person skilled in the art can carry out the invention with the aid of the description and the drawings accompanying the claim . A person skilled in the art is defined as an ordinarily skilled practitioner who is familiar with the teaching of the patent and the references therein, and who has basic general knowledge of the relevant technology at the date of filing of the patent application . He/she must find in the description of the patent the features indispensable to the execution of the invention , the means of reproducing it by simple operations , using his/her normal theoretical and practical professional knowledge and that cited in the patent . If the description contains an error concerning the manufacturing process, the person skilled in the art should be able to easily rectify it . The description is not sufficient when it contains extremely broad and imprecise  or contradictory  instructions, does not explain the elements to be used to achieve the result , achieves the claimed result only one time out of three , or when the person skilled in the art has to make an excessive effort to understand and implement the invention , such as by means of a search program . However, the absence of proof of a technical effect over the entire scope of the claim is not enough to establish insufficiency of the description .

See e.g. CA Paris, 14 May 2008, LawLex202100003586JBJ, which ruled in this case that the invention, which was sufficiently substantiated by the description given and by the drawings appended to the patent application, could not be criticized for inadequate description; CA Paris, 12 October 2012, LawLex202200000686JBJ.

CA Paris, 18 May 2005, LawLex200500009065JBJ.

CA Paris, 6 January 2006, LawLex202200002125JBJ.

CA Paris, 27 September 2016, LawLex202200010929JBJ.

Cass. com, 22 March 2005, LawLex202200001239JBJ.

CA Paris, 12 January 2016, LawLex202200000691JBJ.

Cass. com, 5 March 1991, LawLex202200002226JBJ; CA Paris, 12 January 2016, LawLex202200000691JBJ.

Cass. com., 10 March 1980, LawLex202200001082JBJ, concerning a certificate of addition.

CA Paris, 21 March 2012, LawLex202200000793JBJ1.

CA Paris, 23 March 2012, LawLex202200000777JBJ.

Cass. com, 6 December 2017, LawLex202200002437JBJ; CA Paris, 21 March 2012, LawLex202200000793JBJ.

CA Paris, 29 May 2024, LawLex202400004167JBJ.

The description must be given under the conditions and in the order specified in Article R. 612-12.

CA Paris, 26 May 2016, LawLex202200010421JBJ.

CA Paris, 16 October 2024, LawLex202400007970JBJ.

CA Paris, 17 January 2025, LawLex202500000821JBJ.

Cass. com. 15 March 1977, LawLex202200002174JBJ.

Cass. com., 26 October 1993, LawLex202200002175JBJ; Cass. com., 20 March 2007, LawLex202200001352JBJ, specifying that a court of appeal cannot declare a patent invalid without examining whether a person skilled in the art cannot use the description and drawings to reproduce the invention.

Cass. com, 13 November 2013, LawLex202200001315JBJ.

Industrial Property Law

272. Clear and complete description

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

272. Clear and complete description

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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