The right questions to ask yourself before applying for a patent

Have you developed a new product, software or methodology (process) and are wondering whether patent protection is the right option?

Here are the right questions to ask yourself:

1. Does your product, software or methodology fall within the scope of patentability?


There are exceptions to patentability and to the definition of invention, including :

  • discoveries, scientific theories and mathematical methods
  • aesthetic and ornamental creations that are protected by copyright
  • computer software, as such, which is protected by copyright
  • surgical, therapeutic and diagnostic procedures
  • intellectual or commercial plans, principles and methods.


An exception

Of course, these exceptions are interpreted strictly, so it is perfectly possible to protect related elements such as a surgical tool, the algorithm associated with your software, the devices used to implement your business method, or an innovation based on a new scientific discovery or designed using a mathematical method.

If in doubt, do not hesitate to consult the IP Office or to contact us. We can help you identify which aspects of your innovation are patentable.

2. Is your product, software or methodology new?


The first criterion for obtaining patent protection is novelty. It is important to know how your product, software or methodology differs from those of your competitors. You are in the best position to know your competitors and their products, and therefore to be able to say whether what you have designed is new. If in doubt, we can, if you wish, carry out a prior art search to confirm this point.

3. Could your product, software or methodology have been easily obtained from the prior art?


The criterion of the inventive step is a relatively complex one. Nevertheless, the first approach consists of simply asking whether the product, software or methodology is a simple combination of existing means/products.

Even if the example provided by the French Patent Office (INPI) of the pencil and eraser is not perfect, it helps to illustrate this criterion. The pencil and the eraser exist, and the simple combination of the two, the pencil-eraser, is obvious. On the other hand, the element enabling such a combination (metal ring) could be considered non-obvious.


4. Can your product, software or methodology be industrialized?


This criterion is generally not a problem, since it is simply a question of whether your product, software or methodology can be reproduced and industrialized. Therefore, this criterion should not be an obstacle to the patentability of your invention.


If the answer to each of these questions is positive, that’s good news! Patent protection seems to be the right solution for protecting your product, software or methodology.

If not, there may be other solutions for protecting your innovation, such as utility certificates, designs or copyrights.


These questions are designed to give you an initial idea of whether your innovation can be patented. Our teams are at your disposal to provide you with further advice by e-mail or telephone and to consider together the best solution for protecting your innovation.


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