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European IP Attorneys


09 December 2020

The lack of opposition against public order and morality in patents: a recent example of a rarely discussed validity condition

When we talk about the legal conditions regarding the patentability of an invention, novelty and inventive step are systematically brought up. However, there are other conditions. For example, the commercial exploitation of an invention can not go against public order and morals; this can only result from the sole fact that this exploitation is forbidden by a legal or regulatory disposition (article L. 611-17 of the Intellectual Property Code).

This disposition, which has so far rarely been at the centre of jurisprudential decisions, in France as well as in Europe, appears at first glance to be difficult to interpret. In this regard, a recent decision from the Tribunal Judiciaire de Paris (N° RG17/12393 from November 6, 2020) showcased the framework in which this article can be applied.

The claimed invention was a “kit for the consumption of solids or semi-solids by inhalation […]”, more well known as a “crack pipe”, enabling the consumption of solid drugs.

The use of such drugs being illegal, the applicant for cancellation claimed that the invention could not be patented due to it being against public order and morals. To support their claim, they referred to a 1913 decision regarding Opium pipes.

The Tribunal disagreed with this reasoning and considered that “even though the patent FR 724 revolved around a kit for the legally prohibited consumption of drugs, it is not in itself against public order and morals as long as its exploitation can be only be done by distributing kits to drug users through CARUUD and public health organisations which work in a legal framework determined by risk mitigation policies and whose leading aim is public health, and not advertising or encouraging drug consumption”.

By doing so, the Tribunal confirmed a constant jurisprudence in this field: as long as there is a legal application for an invention, this invention can not be considered as going against public order or morality.

Stéphane OUDIN