Technicality and patents law
Jean-Christophe GALLOUX - Professor (université Paris 2 Panthéon-Assas)
Jacques RAYNARD - Professor (université de Montpellier I)
Bertrand WARUSFEL - Professor (université de Lille 2)
Laurent PFISTER - Professor (université Paris 2 Panthéon-Assas)
Thierry REVET - Professor (université Paris 1)
Hanns ULLRICH - Professor (IUE)
The object of patent law is the appropriation of novel technical teachings in order to support technological development. Thus, the technicality is a fundamental condition of the patent right appearance. However, the definition of what technique is in patent law demands, at first, to fix what its normative function is. This function varies depending on the property conception retained. The materialist approach of property views it as a limit to appropriation, while the idealist views it as a criterion of appropriation.
According to the first approach, the property only concerns corporal things and rights. Then the invention is mixed up with a corporal thing that its realization allowed. The technicality is the criterion of corporality, it is a limit to the appropriation. This approach is realized by the establishment of the domain of patentability, which is defined by a list of objects that are not appropriable and by the assessment of the technicality of the invention at the latest stage of realization the invention allows.
According to the second approach, which we are defending, the property can concern either corporal or incorporal things. Then the invention is an incorporal thing. The technicality is a criterion of the appropriation. This approach is realized by the suppression of the domain of patentability and by the assessment of the technicality of the invention at the non-tangible stage.