Page images
PDF
EPUB

however, by far the most voluminous specification for which a patent has ever been granted by the French Government, and is even now exhibited at the Ministry as a curiosity.

Should the Minister reject the demand, there is an appeal to the Council of State or a fresh application or applications can be made. If, however, the invention have been published in the meantime the patent will be of doubtful validity.

If a patent be once granted, it cannot be annulled afterwards on the ground that it contains more than one principal object.

In patenting a process as the principal object, the obtaining and purifying of various by-products can be claimed.

Novelty. For the patent to be valid, the invention must be "new," that is, must not have been publicly used or described in any printed book in any country, or in any manuscript open to public inspection in any public library or patent office, in any country, before the date of the application, or of priority obtained under the Union for the Protection of Industrial Property, of which France is a member (see page 194), in such manner that from the description a man skilled in the trade could understand and work the invention. A French patent must therefore always be applied for on or before the date on which the English final or complete specification is accepted, the German patent is allowed, or American patent issued, except in cases where the provisional protection of the Union for the Protection of Industrial Property for the time being protects the inventor. The fact of an invention proving extremely valuable on being introduced to the trade is, as in England, primâ facie evidence of novelty.

Mere experiments, or secret use prior to the

application for the patent, do not nullify it, unless proved to have resulted in commercial success. Thus a patent for the manufacture of a pigment was held valid after it had been proved that the whole process had been published prior to the date of the patent as a laboratory experiment.

So long as any part of a patented invention be not proved to be old, or otherwise invalidated, the patent for that part of the invention is valid, even though all the rest have been declared null and void by a court of cassation.

Licenses and Assignments.-A patentee may transfer the whole or part of the proprietorship of his patent.

The transfer of the whole or part of the patent, either gratuitously or for a consideration, can only be effected by a notarial deed and after the payment of the whole of the prescribed taxes otherwise payable annually.

It is the general rule, but not an absolute one, that no transfer is valid as regards a third party, before it has been registered at the Secretary's office of the Préfecture of the Department in which the deed has been executed.

The registration of transfers and all other acts concerning mutation are made on the production and deposit of an authenticated extract from the deed of transfer or mutation.

A copy of each declaration of registration, together with the extract from the deed above mentioned, must be forwarded by the Préfects to the Minister of Agriculture and Commerce within five days of the date of the declaration. These can be inspected and copies obtained at the Ministry.

There is no penalty for non-registration.

If a patent be sold many times over, and the final owner register the successive transfers (having

previously paid up the taxes), such registration is sufficient, though all the previous transfers escaped registration up to that date.

The purchaser of a patent leaving his title unregistered for a long period, and then registering it, becomes at once the lawful owner of the patent.

A transfer is valid, as regards the actual parties to that transfer, without registration.

The unregistered owner of a patent cannot bring an action for the infringement of that patent.

in

If, however, in the case of an unregistered transfer, the registered owner join the actual Owner an action against an infringer, they can obtain damages.

If two parties innocently purchase the same invention from the registered owner, and the second purchaser in point of time registers his transfer first, fulfilling all the formalities required, he becomes the actual owner, and his purchase, except in special circumstances, is usually held good, even against an unregistered earlier purchaser of the same invention from the same former owner.

If a transfer of the rights in an invention take place before application for a patent, and the purchaser take out the patent in his own name, the transfer cannot be registered, but must be made before a notary, and (if outside the realm) the notary's signature legalised by the French consul, and should be preserved ready for production in case of any one bringing an action to upset the patent on the ground of the patentee not being the inventor.

A patentee selling a patent guarantees, by such sale to the person buying it from him (but not to subsequent owners), that it is, as far as he is able to ascertain, valid; that the statements contained in the specifications are true; and if it be afterwards

proved that any part or the whole of the specification be untrue, or that the product cannot be obtained by following the description of the process described, a judge can decree the annulment of the assignment and the restitution of an aliquot part or the whole of the purchase money.

If, however, a patent be sold for a given annuity during the continuance of the patent, or for a given royalty on the product, and it be afterwards declared void, the vendor cannot be made to refund past payments, but, with the nullification of the patent, the contract ends.

Until, however, the nullification be pronounced, the contract is good, and royalty due up to the date of nullification must be paid by the licensee.

It is customary, nevertheless, in cases of assignment or license, for a special clause to be inserted binding the patentee to return the purchase money in case the patent be declared null from other cause than non-payment of taxes, subsequent nonworking, or expiration of term granted.

Should a part of the patent be nullified, a proportionate part of the purchase money can be similarly exacted by order of a court. A licensee is, in like manner, protected to the extent of the consideration paid for his license, but not for royalties already paid.

On the annulling of a patent, all licenses become void.

A patent can be seized for debt.

A patentee selling a territorial right (his rights for Normandy, for instance), or a part or the whole. of his patent, can recover damages if the assignee of that part exceeds his rights or sells beyond his territory; but he cannot, except in special cases, seize the goods so sold, or prosecute other parties using them, as the latter purchased them from a

licensee, and were not supposed to know the extent of the license.

The license of a patent, even for a share of the profits, does not constitute a partnership between the parties, unless there be a special clause to that effect; and if the licensee do not fulfil the terms of his license, the Tribunal of Commerce can annul the license and decree damages.

If a partnership in a patent be dissolved, any one of the partners can appeal to the Tribunal of Commerce to have the patent sold and the price obtained divided; but if the partners agree that each shall work the patent independently of the others, then neither of the co-owners can from thenceforth claim the protection of the Tribunal in this way.

Should a patentee, a member of a firm or company, sell his patent to that firm or company, he is still the owner of the patent as far as third parties are concerned, until the transfer is registered.

Taxes. A patent is subject to an annual tax of 100 francs, payable before each anniversary of the application, on pain of forfeiture of the patent.

This tax can be paid all at once, or by instalments, at any time. If by any chance the annual tax be not paid when it becomes due, it can be paid any time during the ensuing three months on payment of an additional fine of 5 francs for the first month, 10 francs for the second month, and 15 francs for the third month.

There are no annual taxes on certificates of addition, but these become void with the principal patent on failure to pay the tax on the latter.

If a principal patent and a certificate of addition thereon be separately owned, either party can pay the taxes to prevent the original patent (and consequently the certificate of addition) from falling

« PreviousContinue »