4. What do we mean by "inventive activity"?

The invention deserving a patent must contribute to the progress of the state of the art. If it is already included in the state of the art, even in the abstract, without being specifically targeted by a patent, it is no longer a genuine invention deserving of the counterpart, the monopoly of exploitation conferred.

To characterize inventive activity and determine whether or not a patent application is inventive, examiners and judges have recourse to a legal fiction: the person skilled in the art.

For example, it must be ascertained whether the invention claimed in the patent application or in the granted patent –, particularly in the case of an invalidity action –, is clearly within the state of the art for the "person skilled in the art".