Industrial Property Law

Article L. 611-13 of the Intellectual Property Code provides for two exceptional circumstances in which disclosure of an invention does not destroy its novelty, and therefore does not prevent it from being patentable. Disclosure is not taken into account when it occurs within the six months preceding the filing date of the patent application, or in the case of publication, after the filing date, of an earlier patent application, if the disclosure results directly or indirectly from abuse or official exposure.

Where disclosure results directly or indirectly from an obvious abuse of the inventor or his predecessor in title, it does not constitute a disclosure constituting a prejudicial disclosure of novelty (Article L. 611-13 IP Code). This is the case when the inventor has been the victim of an unlawful act, such as the breach of a secrecy obligation, the misappropriation of documents, or the revelation of confidential information . Abuse requires genuine malicious intent on the part of the perpetrator, or full knowledge of the damage that would be caused or that would be likely to be caused .

Where disclosure results directly or indirectly from the presentation of the invention at an official or officially recognized exhibition within the meaning of the Revised Convention concerning International Exhibitions signed in Paris on 22 November 1928, it does not constitute disclosure detrimental to novelty. However, if the exhibition is officially recognized within the meaning of the aforementioned revised convention the presentation of the invention must have been declared at the time of filing and a justification produced within the time-limits and conditions set by regulation (Article L. 611-13, b) IPI Code) .

Cass. 2e civ., 2 November 2011, LawLex202200001012JBJ.

EPO, 9 February 1995, T 585/92, JO EPO 3/1996, 129: the erroneous publication by a government authority of a patent application before the due date does not necessarily constitute an abuse against the applicant.

Cass. com. of 13 December 1988,  LawLex202200001819JBJ, which considers that there has indeed been disclosure insofar as the applicant did not provide any evidence to establish that the conditions for the exception of disclosure in the context of a world exhibition had been met.

258. Non-prejudicial disclosures