Outdated soon

Glad to be back on the blog, with a report on a decision which already has the flavor of a thing from the past. I am very grateful to Philippe Schmitt for providing this judgment, after commenting it on his blog.

Thales, the famous electronics company, filed a French patent application at the INPI (Institut National de la Propriété Industrielle) on December 17, 2010. It was published under No. FR 2969124. A decision of refusal of the application was issued on July 17, 2018. Thales appealed, which leads us to the judgment at stake.

Here is claim 1 of the application, as modified during examination proceedings:

A method for displaying the steps of a mission of an aircraft on a screen of a display device, the mission being a flight plan, wherein each step corresponds to a waypoint of the flight plan, characterized in that the different steps are displayed in a first graphical window comprising a time scale, or “timeline” (TL), the different steps being displayed opposite the schedule corresponding to their accomplishment, and the length of the “timeline” is longer than the length of the first graphical window, and the graphical window therefore displays only a part of the “timeline”, this part being imposed by the user of the display device.

The application was refused by the INPI as they deemed that:

  • The application merely relates to a presentation of information associated to a mathematical method, without any technical features.
  • The claimed subject-matter cannot be searched and thus compared with the state of the art.

More precisely, the INPI considered that the problem at stake in the application was to facilitate the reading and correlation of data relating to the steps of an aircraft mission, provided by different display windows. In the absence of any such facilitation, operators have to check themselves the consistency of the information provided by various windows. Thus, the INPI held, the problem at stake relates to the interpretation of the data by the operators, and not to a technology of data representation. In other terms, the problem at stake is intellectual and not technical.

Regarding the last feature of claim 1, per which “the length of the “timeline” is longer than the length of the first graphical window, and the graphical window therefore displays only a part of the “timeline”, this part being imposed by the user of the display device”, the INPI remarked that the description of the application does not specify by which technical means the user displays “a part of the timeline“. Therefore, this feature is not characterized on the technical standpoint and no technical effect deriving from human-machine interactions is disclosed in the application.

The Paris court of appeal set aside the refusal, on the following grounds.

First, the court referred to the INPI guidelines and also to the EPO guidelines, regarding the definition of a “presentation of information“. The court thus held that information that is presented is not patentable, but that the way information is presented may comprise patentable technical features if it is distinct from the information itself. In particular, a feature which credibly helps the user perform a technical task owing to a continuous or guided human-machine interaction process provides a technical effect.

Next, the court analyzed that the objective of the patent is to transmit information to a user, more specifically the pilot or copilot of an aircraft, so that he/she has a consistent and integrated representation of the mission, in order to make decisions based on a complete knowledge of the state of the aircraft and of its environment.

The court then turned to the first characterizing feature of the claim, and concluded that it is not a technical feature. Namely:

The first feature relates to a window comprising the “timeline”, which displays the different steps opposite the schedule corresponding to their accomplishment. […] Such a window, oriented with past at the bottom and future on top, vertically divided in its center by a timeline, comprises way times on its left and remarkable way points on its right, including mentions such as speed, altitude, beside the current position of the aircraft represented by a symbol “A”. It thus appears that this feature, although it is key to the patent applied for, only relates to the transmission of information to the pilot of the aircraft, both concerning the cognitive information content (way times and way points) and the manner it is presented (as a function of a timeline). There is no distinct technical feature and it is thus not patentable per se. 

However, the court’s take on the very last claimed feature was quite different:

On the other hand, the second feature recites that when the length of the timeline is longer than the length of the first graphical window, the user (pilot) may display only part of the timeline (imposed by him/her). This is a technical means distinct from the content of the information itself. It should be added that this means helps the pilot select the most relevant of said information and thus produces a technical effect […].

In order to conclude that this feature is nevertheless not patentable, the [INPI] asserts that it only mentions a result to be achieved, namely imposing the display of part of the timeline, without clearly setting out the technical means allowing such result to be achieved. However, during examination proceedings, the [INPI] does not have the power to rule on the insufficiency of disclosure of the patent, so that this reasoning is moot. [The INPI] also asserts that this insufficiency of disclosure does not allow a comparison with the state of the art and the preparation of a search report. However, nothing prevents a prior art search, for instance in the “WL” window displaying the list of way points as a table, [to check] if the user can, when the length of this list is greater than the length of the window, display only part of this list. 

Presentation of information can be technical after all.

In summary, the court held that the last feature of the claim is a technical feature, so that the claimed subject-matter is an invention (or rather, is not a non-invention, as patent law is somewhat Carrollian).

The absence of disclosure of precise technical means in the description of the application should not be taken into account, the court added, since insufficiency of disclosure is not a ground for refusal of a French patent application.

In fact, the current list of grounds of refusal of a French patent application is quite limited. For example, lack of inventive step is not one of these grounds, and this is why there is no discussion of inventive step whatsoever in the judgment. This is also why the decision will be outdated soon, as additional grounds of refusal (including lack of inventive step) will be taken into consideration in the near future – see my previous report here on the Pacte bill.

A case like this one is actually probably a good argument in favor of this bill. Indeed, it makes little sense for the court of appeal to set aside a refusal without having to discuss or consider inventive step at all – which of course should be an important point to look at, since lack of inventive step is a ground for nullity of a granted patent.

This case has also made me realize that insufficiency of disclosure has not been introduced as a new ground for refusal in the Pacte bill. Why that is is a conundrum. If the aim is to strengthen French national patents and beef up examination proceedings, why leave a ground for nullity out of the INPI’s purview?

As a final remark, I am, like the court of appeal, unconvinced by the alleged impossibility to perform a prior art search. This is a current and actual ground for refusal, but in my view it should be limited to extreme cases in which the claims are for instance so poorly drafted that they are not understandable. On the other hand, as a matter of policy I do not believe that this provision should apply to features which are alleged to be non-technical – which is always a debatable notion, as shown above.

Now, here is another interesting thing. There is no European patent application equivalent to the French application at stake. But the French application was sent out to the EPO for a prior art search, as is the case for all French applications which do not claim a foreign priority.

And the file wrapper shows that the EPO examiner refused to perform the search, and noted that the claims “relate to a an abstract and generic process of displaying data, independently from any technology. This subject-matter is excluded from patentability, like any abstract method of graphical representation as such, as it is equivalent to a mathematical method“.

Therefore, to some extent, the INPI’s refusal was really based on an EPO examiner’s position.

The feature found to be technical by the court was present in claim 2 of the original claim set. So perhaps the EPO examiner did not pay as much attention to it as he should have. Or perhaps the Paris court of appeal has a more generous view of technical features than the EPO, when it comes to graphical user interfaces. Or perhaps the court would have found the claims invalid based on another ground if all grounds were within its purview.

When the new examination proceedings come into force, it can be expected that the number of refusals will markedly increase, especially in the particular field of technology of graphical user interfaces. This could give the court of appeal the opportunity to further elaborate on its views on this topic.

And if it turns out in the end that its stance is less strict than the EPO’s, this could entail a dramatic shift in filing strategies.


CASE REFERENCE: Cour d’appel de Paris, pôle 5 chambre 1, May 21, 2019, Thales v. Directeur Général de l’INPI, RG No. 18/19669.

A packed Pacte

France has a funny bicameral system.

Both chambers of the parliament, the Assemblée nationale and the Sénat, get to debate on, amend and vote bills. But if they fail to agree on the same version of a bill, in the end the Assemblée nationale has the last word.

And so it is with the so-called “Loi Pacte“, first discussed on this blog post. There was some suspense as to what the bill would finally contain, as it bounced back and forth, being amended and dis-amended from one chamber to the other. But now the suspense has come to an end as the bill has been finally adopted and will become the law of the land.

Well, unless there is a last minute surprise, as the constitutionality of the bill will likely be challenged in front of the Conseil constitutionnel (our constitutional supreme court) by disgruntled members of parliament.

The final text is here and it is 408 pages long (yes, that is some packed Pacte). It has many different aspects, including some controversial ones – like the privatization of ADP (the company that runs Paris’ airports). It also contains some provisions on IP, including just a few ones on patent law – but they are very important provisions indeed.

Basically, the report that I previously made on the draft still stands, although the articles have been renumbered:

  • The maximum duration of utility certificates will be brought from 6 years to 10 years (article 118).
  • It will be possible to convert a utility certificate application into a patent application within a deadline which still needs to be determined, whereas only the opposite is possible as of today (article 118).
  • The government is authorized to rule by way of an ordonnance in order to set up a procedure for third parties to oppose a granted patent (article 121).
  • The INPI (French patent office) will be able to refuse a patent application if its subject-matter is not an invention or is excluded from patentability, in contrast with the current formulation, per which its subject-matter is “manifestly” not an invention or is “manifestly” excluded from patentability (article 122).
  • The INPI will be able to refuse a patent application if its subject-matter is not novel or not inventive, in contrast with the current formulation, per which an application may be refused if it was not modified despite a “manifest” lack of novelty (article 122).
  • Infringement actions will be time-barred five years after the day the right owner knew or should have known the last fact allowing them to act, as opposed to the current formulation, which is five years “from the facts” (article 124).
  • The statute of limitations will no longer apply to patent nullity actions (article 124).

So, there you have it, I don’t know if it is spring or winter, but a new season is definitely coming.

In the year 2525 – if patents can survive.

So what next? Well, first we will have to carefully look at transitional provisions.

In this respect, I have noted the following:

  • The new provisions on utility certificates shall enter into force when the implementing decree is published, or one year from the publication of the law at the latest.
  • The timeline for the introduction of the opposition proceedings is still unclear, as it will depend on the regulations (ordonnance) that the government will issue.
  • Provisions extending the scope of examination of patent applications by the INPI shall enter into force one year from the publication of the law.
  • The new provision on the statute of limitations for nullity actions will immediately enter into force – but will have no effect on decisions that have become res judicata. It remains to be seen how this will be interpreted in practice.

The bottom line is that, regarding the biggest changes for patent applicants, patent attorneys and the patent office, we have some time to get prepared – but we all know how that usually flies.

The nitty-gritty of the new system is still unclear and will require our full attention.

Moreover, another question mark is how the INPI will adapt to this upheaval.

Based on a report on a meeting between the INPI management and representatives of the patent profession a few weeks ago, the following seems to be contemplated at present:

  • The projected date of entry into force of the patent opposition proceedings is January 1, 2020 (this is quite ambitious).
  • The projected start of the examination of inventive step is mid-2021 (this is because the new law will only apply to newly filed applications, I presume).
  • In terms of HR efforts, 15 patent examiners currently working on a backlog of national search reports will be redeployed to deal with opposition cases, and 16 new patent examiners will be hired to deal in particular with the increased workload related to the examination proceedings.

We also learn from this report that the new French “provisional patent application“, that we have heard of a number of times, is not dead. It should be created soon by way of a government decree.

I am curious to know what such a provisional application will look like. So far, patent professionals have been extremely skeptical about this – to put it mildly.

According to one apocryphal anecdote, President Macron was told by a French start-upper a few years ago that U.S. law is much more favorable to innovators than French law, because they have provisional applications in the U.S.

As a reminder, filing a French patent application without claims and without paying any taxes gives you a filing date, which is all you need to later claim priority. So, if there is any truth to this anecdote, it probably means that our President never met a French patent attorney – or at least that such a meeting did not leave as strong an impression as the ones he had with start-up folks. Which, let’s face it, is quite understandable.

Nightmares before Christmas

Beside the tribute to Tim Burton’s work in the title, this post is probably going to be of little interest to non-French patent attorney readers.

Sorry for that. 

On November 19, 2018, the INPI (French patent and trademark office) launched a new web-based patent filing system, called “Portail Brevets“, and shut down the good old EPO-style OLF system which we had been using for a number of years. 

It is likely that in the future the new system will be viewed as a major improvement, in particular because it should make an actual online management of patent applications possible.

But so far, I am sorry to say that it has been all but a nightmare for many users. The suddenness of the switch from the old system to the new system (no more OLF, no more fax, no more in-person filing) did not play well. The fact that some important developments still seem to be missing in the software did not make us happy campers either (address book anyone? configuration of pre-filled fields anyone?).

But the main issue is the following.

The new system only accepts a docx file for the text and drawings of the patent application. You may no longer upload pdf files. The docx file needs to comply with a number of requirements. If your file is not compliant, you get an error message. But most of the time the error message is so vague that it does not make it possible to immediately understand what is wrong with your file.

To me this is the most serious defect of the current Portail Brevets, as you can easily waste hours trying to figure out why the system does not like your docx file. 

The point of this blog post is not to criticize the INPI.

I am grateful for the efforts made by good people in the patent office working hard to modernize their tools and to provide patent applicants with the best level of service. I can also imagine that times must be stressful for the INPI too, as they are probably confronted with angry customers on a daily basis. 

No, my idea was rather to just provide a few tips based on my own experience as a newbie with the Portail Brevets, in case they may be of assistance to others. It would also be fantastic if readers could give some tips of their own in the comment section of this post. 

If you have had a problem filing via the Portail Brevets or if you have identified a potential trap, it is more than likely that other users will also encounter the same problem or fall into the identified trap. Thus why not contribute and help the entire community? 

In fact, if this appears to be useful in view of the comments, I will consider completing this post in the future to incorporate all relevant contributions into the body of the post, so as to provide a useful resource to all stakeholders. 

Note that most if not all of the issues should be avoided if you carefully read and digest the user’s documentation (here, here, here and there). But putting theory into practice is never an easy task, and I tend to think that a sort of practical troubleshooting description can always be useful.  

Season’s greetings.

So here we go with the difficulties / traps that I have identified so far: 

  • In the drawings section, you should type [Fig. 1] or the like, then a single paragraph break (“enter“), then immediately insert your drawing image. If there are several paragraph breaks, you will get an error message. 
  • In the description, you want to make the first reference to your drawing figures in an individualized manner, and the figure tag should be exactly at the beginning of a line. Thus, you should type: “[Fig. 1] shows …“; and then on the next line: “[Fig. 2] shows…“. You should not write “[Fig. 1] and [Fig. 2] show…“. Nor should you write “An embodiment of the invention is shown on [Fig. 1]“. And since we are actually talking about French language texts, you should not write “La [Fig. 1]…” either, because then the figure tag is not at the very beginning of the line. 
  • Beware of lists in MS Word. For instance, if you have a list with a), b), c) and if item c) comprises a list with bullet points, the bullet points will be automatically renumbered as d), e) etc. in the pdf file generated by the software. One way to avoid this is to keep only the first list and manually insert hyphens or like symbols for the second list. At any rate, you should carefully check all lists in the pdf file generated by the software. 
  • The same applies all the more so to lists in the claim section. Paragraph breaks (“enter“) should be avoided within a claim, and only line breaks (“shift + enter“) should be used. Otherwise, your claim numbering and count could be erroneous. 
  • If you insert an image into your document, and if the docx file is not approved by the system, you may try to convert the image to a different type before reinserting it.
  • A number of expressions are recognized as tags by the software, even though they are without square brackets. This means that they will be renamed and treated as section headings in the pdf file that is generated. The list of relevant expressions can be found in one of the documentation files linked to above. As a result, (1) if you use a slightly different wording, the expression will not be recognized and treated as a section heading; and (2) you cannot change the headings in the generated pdf file. For instance, if you type “Description détaillée“, your final heading will read “Description des modes de réalisation“.  Too bad if, like me, you tend to prefer “Description de modes de réalisation” (embodiments vs. the embodiments). 
  • If you use the MS Word upper case style, for instance for the title of the invention, the formatting is lost in the generated pdf. In other terms if you have typed “DeVicE” in your docx file but it reads “DEVICE” because of the upper case style, the pdf will nevertheless show “DeVicE“. It may therefore be best not to use the upper case style at all. 
  • As a warning, when you press the pay button, the application is filed. There is no “file application” button or the like. 

That’s all for the time being. If you cannot figure out where the error is in your docx file, it is possible to call the INPI for help and possibly send them the file by email so that they can look at it and advise you. But of course this process takes a little bit of time. 

Good luck everyone!

The new patent frontier

Out of sheer laziness, I am usually reluctant to report on bills that are still in the legislative process.

After all, you never know whether your report will still be consistent with what comes out of the process in the end. You may call that the UPC syndrome.

But the reform of the French patent granting procedure currently in gestation represents such an upheaval of the world as we French patent attorneys know it that it is getting more and more difficult to ignore it on this blog.

So, today, I will update readers on the “Projet de loi relatif à la croissance et la transformation des entreprises“, also known as the PACTE bill. Don’t ask me what the A in the acronym stands for. It is probably just easier to pronounce than “PLRCTE“, that’s all.

This is a very complex and long (some would say catch-all) bill that spans labor law, tax law, commercial law, etc. And there are a few provisions on patent law, which are rather far-reaching.

The bill, updated as of today, can be found here. All provisions have now been approved by the Assemblée nationale (the lower chamber of our parliament), which prompted today’s post. Please bear in mind that these provisions can still be modified during the rest of the legislative process though, but by now it is more likely than not that they will indeed become law.

The first relevant part of the bill is article 40, which deals with utility certificates. That’s the local name for utility models. These are seldom used in this country and probably not very well known. The three current main features of the utility certificate are the following:

  • no search report is established for a utility certificate;
  • the maximum duration of the utility certificate is 6 years from the filing date; and
  • a patent application can be converted into a utility certificate application but not the other way around.

In order to make the utility certificate a more attractive option for innovators, the maximum duration of the certificate will be brought to 10 years instead of 6. Its duration will thus be on a par with that of utility models in foreign countries, notably Germany.

A second change is that it will now be possible to convert a utility certificate application into a patent application. The conditions for this conversion will be further specified by way of an executive order.

If we assume that flexibility is always appreciated by applicants, these changes will indeed make the utility certificate more palatable to them. While we are at looking at what the Germans do, we might as well have imported the “Abzweigung“, i.e. the possibility to file a utility model application as a split-off from a patent (including European) application. This can be quite a powerful tool for applicants. Maybe next time – together with a (much awaited) re-opening of the French national phase PCT route?

The second topic addressed in the bill is a much bigger prize, though.

Article 42 authorizes the government to create national opposition proceedings, so as to allow third parties to request the revocation or modification of a French patent, by way of an “ordonnance”. 

An “ordonnance” is a special kind of executive order which has the same effect as a law passed by the parliament, provided that it is later ratified by the parliament.

There are absolutely no details as to this future opposition in the bill, as the parliament has precisely surrendered its prerogative to set rules on this matter to the government, by way of this article 42. So we will have to wait until we see the “ordonnance”. 

For what it is worth, a survey was conducted by the French patent and trademark office (INPI) on this topic a few months ago. Among the questions which were addressed in the survey, were the following:

  • Should any person be allowed to file an opposition, like at the EPO, or should an opposition be reserved to persons and entities having standing? (And, boy, we know that the appraisal of standing in nullity suits can be tricky.)
  • Should the opposition period be set to 6, 9, or 12 months?
  • What should the grounds for opposition be?
  • Should it be possible to file an opposition against a granted utility certificate?
  • Should the decision on the opposition be open to appeal in front of the Paris Tribunal de grande instance (first instance court) or in front of the Paris Cour d’appel (appeal court)?
  • What should the effect of an opposition be on parallel litigation, in particular concerning a possible stay of proceedings?
  • Should oral proceedings be summoned?
  • Should an accused infringer be able to intervene in opposition proceedings?
  • Should the examiner who granted the patent be part of the panel of three examiners who will decide on the opposition?
  • Etc.

As you can see, things were (still are?) very open. Rumor has it that the INPI is contemplating a rather extensive alignment of the future French opposition proceedings on the EPO model.

As a side note, article 42 of the bill specifies that the future “ordonnance” should make sure to prevent abusive oppositions. I have no idea what they mean by this, but I do hope that there will be no standing required to oppose a patent. This would certainly lead to useless complexity and legal uncertainty.

PACTE, the final frontier?

Now, the third topic of interest in the bill is as big as the second one – if not bigger.

At present, the INPI has limited power to refuse a patent application. Basically, a French examiner can raise objections (such as lack of clarity or unity) before the issuance of the search report. Then the search report and a complete written opinion are drafted, either by the EPO or directly by the French examiner. Then the applicant files observations as a response – which can very well be very brief. And a refusal can only take place in exceptional circumstances, e.g. if it is “blatant” that the application relates to subject-matter which is not an invention (such as discoveries, aesthetic creations, etc.); or if there is a “blatant” lack of novelty.

There are further (more minor) grounds for refusal, such as lack of unity. But the major fact is that lack of inventive step is not a ground for refusal – although of course it is a ground for nullity of the issued patent in front of a court. And lack of novelty or lack of patentability are grounds for refusal only insofar as the objection is crystal clear and there is no possible defense.

Well, it seems like this fundamental peculiarity of French patent law is about to become a thing of the past.

Article 42bis of the bill will make it possible for the INPI to refuse an application for lack of novelty or non-patentability, period (i.e. the objection will no longer need to be blatant); and also for lack of inventive step.

A huge change indeed. Hailed by some, as it is believed to increase the value of French patents. Lambasted by others, as applicants (especially local ones) may be less incentivized to file national applications if the local granting procedure becomes similar to the European one.

To me, the success or failure of the above reforms will mostly depend on their implementation by the INPI.

Tremendous efforts will have to be undertaken to hire and properly train new examiners to perform these tasks. Let’s hope that this aspect has not been underestimated by the government and that sufficient funding will be available to support these efforts.

One good point is that the new, beefed up, granting procedure will only come into force two years from the entry into force of the PACTE law. This transition period will certainly be necessary in order for everyone to get ready for this new enterprise, in other words “to explore strange new worlds, […] to boldly go where no man has gone before“.

And by the way, who said the unitary patent and the UPC would be the kiss of death for national patent rights?

PS: for those eager to know everything about the debates that took place in the Assemblée in connection with the above provisions, here is the link to the full transcript. Don’t hold your breath though, it is fairly high level and there was no discussion on the nuts and bolts of the new system.

More numbers

Further to last week’s report on the latest statistics regarding the EPO Boards of appeal, today’s post is about another batch of numbers, this time from the French patent office.

But before getting there, I would like to briefly follow up on last week’s post, with two additional comments.

First, I wondered last week about the extraordinary situation in Board 3.3.02, which is now understaffed to the point of being practically unstaffed. A reader kindly brought to my attention that some cases originally distributed to this board seem to have been transferred to another board. For instance, case T488/16 was transferred to board 3.3.01 in October 2016. This makes sense in order to prevent some appeals from getting lost in limbo. But I still wonder what happened to board 3.3.02 in the first place.

Second, the EPO released another report a few days ago regarding the 2016 statistics. Very informative indeed. Three figures in particular caught my attention.

The first figure is the number of so-called “patent filings“, which reached more than 296,000 in 2016, up by 6.2% since 2015. This indicator is put in the spotlight by the EPO every year, even though it is a rather artificial one, as many others have noted. Indeed, these “patent filings” include both European direct filings and PCT filings (whatever the receiving office is). The latter represent a large portion of the 296,000 filings. Of course not all PCT filings give rise to actual proceedings before the EPO. So, the figure should not be interpreted as meaning that the EPO handled 6.2% more applications in 2016 than in 2015.

This leads us to the second figure, which is the meaningful one, namely the number of so-called “total applications, i.e. actual applications for a European patent. The number of total applications is the sum of the number of direct filings at the EPO and of PCT applications having entered European regional phase. Well, it turns out that this indicator is actually down by 0.6% relative to 2015, with a total of 159,353 applications.

It would be interesting to compare this number with the number of national filings in the various EPC contracting states in 2016, to see whether fewer patents were requested overall in Europe, or whether some applicants may have decided to favor the national route, for one reason or the other (such as the upcoming advent of the UPC scaring them off).

Last but not least, the third figure, namely the number of patent grants in 2016. This one is nothing short of astounding. There was a 40% increase in patent grants in 2016, up to 95,940. Obviously, this is good news for applicants. But everyone’s concern is that the quality bar may have been lowered to achieve this impressive figure. This would not be good news for third parties – and all applicants that I know of also happen to be third parties. Of course, it is hard to tell whether this concern has any merit or not. There is only so much that stats can tell us.

For those who love charts and numbers, you can check out the 84 pages of drawings of this U.S. granted (!) astrological patent.

And now, back to Paris, with another report, issued this time by the Institut national de la propriété industrielle (INPI). The report, authored by Emmanuelle Fortune and Mickaël Chion, concerns applications published in 2015, i.e. which were mostly filed in 2013-2014.

It focuses in particular on the respective filing strategies of SMEs (fewer than 250 employees and yearly turnover of less than 50 million euros or annual accounts of less than 43 million euros), large entities (more than 4,999 employees and yearly turnover of more than 1.5 billion euros or annual accounts of more than 2 billion euros), and intermediate ones (anything in-between).

Here are a few subjective highlights from the report.

First, the total number of French national applications filed at the INPI has been remarkably stable for a number of years. The total is 15,105 (again, these are the applications actually published in 2015, not those filed in 2015).

Second, the breakdown of French national applications filed by French legal entities, depending on the applicant’s size:

  • 22.1% of these applications were filed by SMEs;
  • 56.8% were filed by large entities;
  • 6.9% were filed by intermediate entities.

The remainder (14.2%) were therefore filed by public research institutions.

Third, the number of (French) applicants having filed at least one national application, in each category. Here the ratio between SMEs and large entities is the opposite:

  • 66.9% of applicants were SMEs;
  • 14.5% of applicants were large entities;
  • 10.8% of applicants were intermediate entities.

If my math is correct, this means 7.8% of applicants were public research institutions.

Fourth, quite logically, the average number of applications per applicant is heavily dependent on the size of the applicant:

  • each SME filed 1.4 application on average;
  • each large entity filed 16.4 application on average;
  • each intermediate entity filed 2.7 application on average.

Again, the report does not address public research institutions. But some simple math makes it possible to conclude that there were 3.2 applications on average for those. I would have expected this number to be much higher.

Yet, on the one hand, the report uses fractions when there are co-applicants, which I think is often the case when public research institutions are involved. To take one example, if the CNRS files an application together with three other partners, this will count as only 0.25 application for the CNRS. This can partly account for the low number of applications per public institution.

And on the other hand, the above average figures probably hide very large discrepancies between individual entities. I assume that some well known actors such as the CNRS, or Peugeot Citroën Automobiles, Renault, L’Oréal and the like file a very large number of applications every year, which necessarily skews up numbers in their respective categories.

The fifth point that I would like to highlight here is the proportion of French applications giving rise to PCT or direct EP extensions:

  • 50.8% of applications filed by SMEs gave rise to such an extension;
  • 60.8% of applications filed by intermediate entities gave rise to such an extension; and
  • 60.8% of applications filed by large entities gave rise to such an extension.

Reconstructing the missing data regarding public research institutions leads me to a very large proportion of 86.7% of applications giving rise to an EP or PCT extension.

I guess possible factors for the lower extension rate among SMEs is the cost of the extensions, and the more local nature of their markets. At the opposite end of the spectrum, public research entities absolutely need to think globally and invest in the long run in their patent applications before they can hopefully get a profit from them. Also they probably tend to only file applications on significant inventions and not on small, incremental ones, as private companies often do for strategic reasons.

The last batch of figures for today, is probably the most interesting one. It relates to the estimated number of applications or patents in force in France, on December 31, 2015.

The total number is 520,068. In understand it includes French patents, French applications, and granted European patents for which at least one renewal fee was paid in France.

So, good luck folks for your freedom-to-operate analyses… The majority are European patents (72.5%), the rest being French national applications / patents.

The breakdown between French applicants and foreign applicants / patentees is also very uneven: 69.4% of applications / patents in force are held by foreign persons or entities (although the vast majority of applications / patents filed via the national route are held by French persons or entities).

Only 4.4% of all patents / applications in force are French patents / applications held by French SMEs. To this number, we should also add the proportion of European patents held by French SMEs. The figure is not provided in the report, but it is likely very low.

This should somewhat put into perspective the often heard assertion that the patent system is good for SMEs. This is certainly true for part of them. But on the other hand, local SME patents are outnumbered by large entities’ filings and foreign filings – at least in this country.

For those readers really interested in numbers, the INPI report contains further data on technological fields, the regional origin of French applicants etc. It is not too much PR-oriented, simply factual and therefore satisfactual (a tribute to a classic song).