Patents are industrial property rights that enable you to protect an invention for which you have a monopoly. During your research & development work, observing your competitors’ patents gives you the opportunity to react at the right moment. Among the possible procedures for defending your interests,opposition to a patent in France is a new formality announced by the PACTE law.
Patent protection: a 20-year monopoly
The law provides for a 20-year monopoly to be granted to an inventor (or his successor) for an invention that has been patented. In this case, the invention must be new, and not obvious to a person skilled in the art.
The monopoly is only granted when the patent is granted , which defines the scope of the invention. It is on the basis of this perimeter that the patent holder obtains a monopoly.
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Defining the invention
When a patent application is filed withINPI, the invention is first subjected to a national defense examination.
The examination procedure then continues at INPI, during which the examiner and applicant exchange arguments in relation to documents cited by the examiner. If the examiner considers that no definition is satisfactory, he rejects the application. If, on the other hand, the definition of the invention appears satisfactory, the patent is granted.
What does owning a patent mean?
If the patent owner considers that his invention has been reproduced by a third party, he can intervene to ask the third party to stop the infringement by sending a letter of formal notice.
– Read more: Patents and counterfeit cosmetics: Key facts and figures
Opposing a patent: what the PACTE Act makes possible
The nullity action
| Advantages : | Disadvantages : |
| – Proceedings possible throughout the life of the patent (20 years) | – The need to involve a patent attorney and an industrial property attorney – A long and costly procedure |
The patent application procedure includes the possibility of formulating a third-party observation in the examination phase. This involves forwarding documents to the examiner, as an observation, which provides new arguments. In practice, a third-party observation is a means of demonstrating that the applicant has prior art that would prevent the granting of a patent. Third-party observation is not, however, an opposition procedure.
If third-party observation fails, or is not carried out in time, recourse is still possible once the patent has been granted. Anaction for invalidity can be brought before the Court of First Instance in an attempt to have the patent annulled.
Patent opposition: a new feature of the PACTE Act
| Advantages : | Disadvantages : |
| – A simplified procedure at the INPI to request cancellation of the patent as soon as it is granted – An IP advisor is all you need, without a lawyer. | – Opposition must be filed as soon as possible after grant. A watch on the patent application alerts you to the date when the procedure is possible. |
The cost and modalities will be specified by ordinance after the PACTE law comes into force. After a vote in the National Assembly, the Senate adopted on February 05, 2019 the new formality for opposing a patent, included in the PACTE bill. Opposing a patent will be able to be done with the INPI by administrative means.
In Europe, the period allowed for filing an opposition to a European patent is 9 months from grant.
