It is impossible to protect an idea (see the Practical Article entitled “How to talk about a project without disclosing everything”). Therefore, as the author of an invention, your first step would be to materialize it in order to patent it. You will then meet up with your attorney with the documents proving the materialization of your project – a prototype, a beta version…
Once the invention is materialized, it is time to ask yourself if it can be protected by a patent: is it patentable and if it is, what is the procedure that guarantees maximum protection?
Be careful, even if you have spent a lot of time, and sometimes a lot of money to materialize your invention, it may not survive the dog-eat-dog world of competition. Third parties may very well challenge your patent or even file a patent infringement suit. And yes, sadly, it can happen to you too!
1. Is my invention patentable?
You had a great idea that is materializing before your very eyes. You are the author and therefore its owner. However patent law doesn’t protect everything.
First, to be patentable, a creation has to be an “invention”. It cannot be a “discovery”. An invention implies that a human being has made a contribution, thus adding value to it.
To be brief, a patent is a technical solution to a technical problem. These are the cumulative conditions to patent your technical solution:
- your invention must be the result of a truly inventive activity, it cannot be obvious to a person skilled in the technical area;
- it must be industrially applicable;
- it must be a novelty, and furthermore, the public shouldn’t have had access to it either as a “tester” or a discovery.
To demonstrate one’s invention means losing its patentability
To be patentable, your invention must be a novelty. This not only means that it can’t have already been invented, but that you cannot disclose your invention before applying for a patent.
Be careful of exhibits and award ceremonies where you are asked to unveil your “secret”. It is best to talk in general terms and not disclose the information necessary to carry out the invention. It is also best not to put a test version at the disposal of third parties. Once it is disclosed, your invention is no longer new, and the office may then refuse to patent it!
2. Does my invention already exist?
To make sure your invention is a novelty, you must carry out a “prior art search” before applying for a patent, in France and/or internationally. In other words, you must check if your invention, your solution to a technical problem, has already been developed and patented by somebody else on the same territory. You must make sure that no other invention has the same name as yours, but also, using key words, that no other invention, for instance, solves the same problem using the same process.
This implies having technical knowledge and vocabulary in the field.
Professionals such as attorneys and counsels should be the ones carrying out this research.
Before applying for a patent, check that your invention is patentable:
You should make sure that the invention:
- complies with morality and mandatory legal provisions.
- results from an inventive activity and is industrially applicable;
- is a novelty. You should therefore carry out a prior art research in France and/or internationally.
Have professionals carry out the prior art research. Be careful: going onto the INPI website and making sure that no invention with the same title has been patented is not enough.
3. How do I apply for a patent?
You must provide the INPI (the French National Institute of Industrial Property) with the application form and all the documents required. The main and more complex documents to establish are the following:
- the “ detailed description” of the invention (that cannot be modified after you submit your application)
- the “claims” providing the INPI examiner with the detailed protection you are seeking;
- a “précis”, a summary of your invention.
For an optimal protection, you should seek the assistance of an attorney.