The French Supreme Court renders two decisions to better define the notion of invention

[17/01/2023]

The Court of Cassation (French Supreme Court) has just rendered a judgment and a decision on the same day (Appeals no M 19-19.567 & Z 20-10.935) providing different and complementary insights into the grounds for rejection of French patent applications pursuant to Article L.612-12 of the Intellectual Property Code, which provides for rejection if the subject-matter of the application cannot be considered an invention. In these two cases, the patent applications relate to the field of computer-implemented inventions.

These appeals are exercised by the General Director of the Institut national de la propriété industrielle (French Patent & Trademark Office). They concern judgments where the Court of Appeal overruled a decision rejecting a patent application, the Court of Appeal having ruled in favour of the applicants in both cases.

In the first Appeal, the claimed subject matter is a method for displaying steps of a mission of an aircraft on a screen of a viewing device. The Supreme Court reversed the judgment because the Court of Appeal had not justified the existence of a technical effect or how the claimed means were different from a presentation of information. The Supreme Court therefore referred the parties back to the Court of Appeal for the case to be tried again.

In the second appeal, the Supreme Court recalls that the exclusion from patentability provided for by the law must be interpreted strictly. Thus, a terminal for establishing communications comprising various mutually interacting technical means, for example to allow communications between fighters on an battlefield, does not concern a method of performing mental acts as such and is thus not excluded from patentability. The Supreme Court dismissed the appeal as it is clearly not such as to reverse the judgement. The examination of the patent application should therefore resume, thereby once again opening up the possibility for the applicant to obtain a patent.

While the first case is thus going on before the Court of Appeal, the judgement of the Supreme Court in the second case confirms the case law favourable to the patentability of inventions by computer in France.