PATENT LAW – An easier patentability of computer-implemented inventions
Legal watch
7 June 2023
French Supreme Court January 11th, 2023, no. 19-19.567 & French Supreme Court January 11th, 2023, no. 20-10.935 – On January 11th, 2023, the French Supreme Court rendered two decisions in favor of recognizing the technical means of computer programs, and therefore their patentability.
Under French law, regarding computer-implemented inventions, article L. 611-10 of the French Intellectual Property Code provides that “computer programs” and “presentations of information“ shall not be considered as inventions”. However, paragraph 3 of the same article specifies that only patents concerning “one of these elements” are excluded from patentability. Therefore, software could in principle be patentable only if the invention in question has technical means.
The first case (French Supreme Court, January 11th, 2023, no. 20-10.935) concerned a French patent application filed by BULL for a “terminal establishing communications by broadcasting within a group“. The purpose of the invention, which had a military application, was to permit transmission of information on the status of each soldier in a combat unit, thus providing an overall view.
Regarding the second case (French Supreme Court, January 11th, 2023, no. 19-19.567), the French patent application was filed by THALES for a time-based display of an aircraft’s mission. The aim of this patent was to improve the display of information in cockpits, in order to facilitate the reading and correlation of data relating to the stages of an aircraft mission.
Both patent applications were rejected by the Director of INPI for lack of technical character.
Following an appeal, the Court of Appeal overturned these decisions considering that both patent applications have a technical character.
In both cases, the Director of INPI appealed to the French Supreme Court.
In the “THALES” case, the French Supreme Court disapproved the Court of Appeal’s decision considering that the Court of appeal did not provide a legal basis for its decision, holding that the Court asserted the existence of a technical character of the invention without establishing the existence of a technical contribution or explaining in what way the means were technical.
In the “BULL” case, the French Supreme Court dismissed the appeal, ruling that it was clearly not of such a nature as to lead to cassation.
The French Supreme Court seems to be in favor of patenting computer-implemented inventions, but only if the assessment of the technical character of the patent application is well explained and motivated.
Both decisions of the French Supreme Court issued on January 11th, 2023, are debated, as the inventive activity of both patent applications appeared to be rather weak. According to observers, these decisions demonstrate the alignment of French case law with the practice of the European Patent Office in admitting the patentability of computer-implemented inventions regarding the inventive activity.
It is important to keep in mind that both of these two cases were introduced before the law “PACTE” came into force. Article L. 612-12 7° of the French Intellectual Property Code now requires the INPI to examine the inventive step of the patent application, which was not the case when the Bull and Thales patents were examined. It is possible that such examination would have ruled out the patentability of the two inventions in question.
