Industrial Property Law

To be patentable, an invention must not only be new, but must also involve an inventive step (Article L. 611-10, 1° IP Code). An invention is considered to involve an inventive step if, for a person skilled in the art, it does not result in an obvious way from the state of the art (Article L. 611-14 IP Code) . Inventive step and novelty are distinct criteria. However, the question of inventive nature only arises if the invention is new . Lack of inventive step renders a patent null and void .

Prior to the Pacte Law of 22 May 2019, the director general of the INPI did not control the existence of an inventive step when a patent was filed. The absence of an inventive step was only established a posteriori by the court in the context of an invalidity action. Article L. 612-12 of the Intellectual Property Code now allows the INPI director general to reject a patent application for lack of inventive step.

CA Paris, 27 September 2016, LawLex202200010929JBJ; Cass. com. 15 February 1983, LawLex202200001084JBJ; CA Paris, 3 July 2013, LawLex202200001060JBJ.

EPO Guidelines for Examination, November 2019, Part G, Chap. VII, pt. 1.

CA Paris, 5 June 2009, LawLex202200009865JBJ.

260. Inventive step