Industrial property protection is a field that has evolved over the centuries, and continues to change to adapt to new areas of innovation. To obtain a patent is to enter into a moral contract with the State for protection against counterfeiting, in exchange for disclosure of the innovation. The emergence of regulations to govern creations and inventions has in part enabled arbitration in the event of conflict. But patents, by creating detailed archives of innovations, are a direct contribution to scientific progress.
Recognize that a new invention is the property of its inventor
To create a patent, it was first necessary to recognize the property rights of inventors and the authors of discoveries. If there’s one name to remember, it’s undoubtedly that of Chevalier de Boufflers (opposite), who brought these rights into being in 1791.
Until the end of the 19th century, patent legislation was subject to frequent changes. To support progress and protect the rights of inventors and assignees, it was urgent to ensure the continuity of memory. Without this, it is very difficult toestablish the state of the art. Knowing the prior art of an invention not only enables it to be perfected, but also protects it more favorably from competitors.
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At the same time, the d’Allarde decree and the Le Chapelier law (1791) led to the recognition of trademarks. The aim was to combat fraud. The protection of designs was also born in this period. In 1806, a law established a simple system for registering products and samples for the Lyon silk industry. Conflicts between workshops and workers had to be resolved.
Patents give everyone access to knowledge
Although there have been historical gaps in the archiving and publication of patents, the contract between the patent holder and the state has provided for publication of their contents since 1791.
As today, this publication does not concern inventions that are subject to secrecy. It is, however, established that “every citizen can consult the catalog of new inventions […]”, according to Valérie Marchal (author of “Brevets, marques, dessins et modèles. Évolution des protections de propriété”).
In exchange for obtaining a period of protection for the invention, the patent then belongs to the company. It enters the public domain as soon as the industrial property title expires.
Today, the equivalent would be the INPI database service, which can be consulted at any time, as well as the official IP bulletin (BOPI).
Did you know?
To establish the state of the art, and to search for all the elements relating to the prior art of an invention, simply consulting patents online can be highly inadequate. In the 19th century, for example, patent archives could be quite poor, as there was no standardized format. A great deal of knowledge depended directly on the inventor’s memory. In such cases, it is necessary to go much further, consulting correspondence between the applicant and the institution.
Knowledge that endures even after the inventor’s death
Over the course of history, the system for archiving and publishing patent applications and granted patents has been perfected. The aim was to avoid disappointments, such as the absence of 154 patents in the “Description des machines et procédés spécifiés dans les brevets d’invention, de perfectionnement et d’importation, dont la durée est expirée” published in 1811, when the first French patents expired in 1799.
The creation of the Bulletin officiel de la propriété industrielle (BOPI) in 1884, and the standardization of patent documents (1902) made publication systematic. Failure to comply with the formats prescribed by the office simply invalidates the application. The intervention of an industrial property attorney helps to ensure the conformity of patent applications.
Above and beyond the idea of new procedures, this standardization aims to promote the conservation of knowledge and expertise.
Are there alternatives to patenting?
The patent, as an industrial property title, is a relatively old model that still has many years ahead of it. The entry into force of the PACTE law has enabled the patent to evolve, to continue to encourage innovation in the country. Alternatives such as free licenses and open source are interesting ways of getting communities to work together towards a common goal. However, it’s best to think through your objectives, ambitions and constraints before deciding whether to opt for open source or patent. In fact, holding a patent does not mean closing off all possibilities for exploiting an invention.
It creates protection, limited in time, so that the owner can control its use. It is also a means of regulation. An excellent example of this is the prior examination required to identify inventions that could undermine public order and morality.
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