France’s Supreme Court puts patentability of computer-implemented inventions under the spotlight
Written By
Counsel
France
Working as Counsel in our Paris Intellectual Property Group, I draw on both my R&D engineering experience and on my registered French and European patent attorney experience to advise our clients on all phases of patent litigation matters.
The French Supreme Court has recently ruled on the patentability of computer-implemented inventions in two landmark judgments. Does this mean that France is aligning itself with the approach of the EPO? We take a look at these cases and this question in our article.
Background
The EPO has consistently accepted that any claimed method implying the use of technical means, whether it is comprised in the state of the art or not (a computer, a screen, or even a pen and paper), will qualify the claimed subject-matter as an ”invention” under Article 52(1) of the European Patent Convention (EPC). This means it will pass the first hurdle for patentability: eligibility. This has been the position since the notorious Hitachi decision[1].
The approach followed by the French PTO (INPI) has been significantly different over the last decades. In practice, the eligibility hurdle has been more difficult to overcome in France than with the EPO.
For many years, and still now for French patent applications filed before 22 May 2020[2], INPI was not entitled to reject applications for lack of inventive step. Therefore, if a claimed invention was considered patent-eligible, INPI could only reject the patent application for that invention if it blatantly lacked novelty.
This rule had a consequence on how INPI treated computer-implemented inventions (CIIs). If the INPI had applied EPO’s “Hitachi” approach, then practically all CIIs would lead to a granted patent, without any…
