Examiners will soon be entitled to reject French applications based on obviousness, thus reinforcing French patents.
Traditionally, it was relatively easy to obtain grant of a French patent, since examination substantially consisted in establishing the preliminary search report and checking that the recited subject-matter was novel in view of the cited documents. It was less comfortable for third parties though, who had to assess themselves whether patents from their competitors were actually valid or not, and to subsequently decide to take the risk to infringe or not.
The Action Plan for Business Growth and Transformation (PACTE in French) amends (*) Article L.612-12 of the Code de la Propriété Intellectuelle, which deals with the possible reasons for rejections; in particular this Article L.612-12 now refers to the novelty and inventive step requirements of Article L.611-10 of this Code. This means that the examination of French patent applications filed on or after May 22, 2020 will be deeper, and the issued patents will be more likely to be valid.
Since patent applications filed before this date will benefit from the former system, applicants wishing to avoid discussions relative to inventive step, in particular for cost reasons or because they doubt that the examiner will be convinced, should consider filing a French patent application before May 22, 2020.
(*) Article 122 of the PACTE law.
For more information, please contact Gabrielle Radault :
T: +44 (0) 1904 89 8881