HistoryNewsPatentsPATENTS RIGHTS ON ROCKET SHELLS: ANECDOTE REGARDING THE USE OF PATENTS DURING THE FIRST WORLD WAR – Jérôme TASSI –

19 June 2019

In France, the first law that protects inventions is from January 7, 1791. It follows a report of our dear knight Stanislas de Boufflers dated December 30, 1790 entitled “Report on incentives and privileges to be granted to inventors of machines and industrial discoveries ” (Parliamentary Archives, 1st Series, XXI, pp. 721-732 [December 30, 1790]).

Patent law had existed for more than a century when the First World War broke out.

Randomly researching for case-law in the Industrial Property Annals (“Annales de la Propriété Industrielle”), a judgment of the Civil Court of the Seine (the former name of the current Paris Court) of March 27, 1931 hit me because it mixes two of my interests: History and employees’ creations.

 

 

The French inventor of a rocket shell (say Ial rocket) on which he owned a patent “was quick, in a feeling of high patriotism” to put it at the disposal of the French army by selling the rockets at the price cost of manufacture, and without reserving the rights of the inventor.

The Court notes that the War Minister had undertaken to repair the harm done to the inventor.

Due to the Minister’s inertia, the lawful owner of the invention sued the War Minister for damages.

 

What was the Minister’s response? Keeping a stiff upper lip, he raised both the patent’s invalidity for lack of novelty and the nullity of the commitment taken as tarnished by an error on the validity of the patent.

 

The Court rejected this argument, noting that “even admitting that [the Minister] is legally entitled to argue that he could not have an obligation to stipulate a fee for a void patent, that, because of the circumstances,  he had with the inventor a contract of common law which did not intervene without a legitimate cause or under the influence of an error “.

Morality and the rights of the inventor are fortunately preserved!

Let’s take a step forward in 2019.

Article L. 613-20 of the French Intellectual Property Code grants state administration expropriation rights on inventions, in whole or in part, for the purposes of national defense in return for compensation. If no agreement is reached, this compensation is fixed by the Court.

Regarding the validity of the patent, it is frequently challenged by the person who is liable for payment (i.e generally the company that owns it) in disputes involving employees’ inventions. As in 1931, this argument is often rejected. For instance, the Paris Court of first Instance ruled that “The VYGON company cannot claim for the sole purpose of escaping the payment of the fair price that its invention was within the reach of any person skilled in the art even if having understood that the invention suffered from a lack of inventive step, abandoned its European patent application and allowed the French patent to lapse by ceasing to pay maintenance fees. Indeed, it took advantage of this invention in its communication and with its customers and opposed it to the competition ” (TGI Paris, March 31, 2016, RG n° 15/07035).

 

 

Jerôme TASSI

Attorney-at-law

 Source: Civil Court of the Seine, March 27, 1931, Ann. 1932, pp. 341-342

 

The opinions expressed in this article are those of the authors and do not necessarily represent those of the Institute.