🎧 Listen to Episode 6 of LEXpérience: “Protecting Ideas”
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Protecting Your Ideas: What We Think and What's True
Episode 6 of the LEXpérience podcast
No, an idea cannot be protected by a patent.
And this belief, shared by most entrepreneurs, can be very costly.
In every class, at every lecture, during every first meeting with a client, the same question comes up: Can you protect an idea? And every time, the same belief: Yes, with a patent. But that’s not true. Ideas are free to roam. As long as they stay in your head, no one can steal them from you—but no one can protect them for you either.
What you protect is what you make of it.
For this sixth episode of LEXpérience, the legal podcast from ALLY Avocats, we were joined by Julien Delucenay, a patent attorney and co-founder of the firm Ardan. With twenty years of experience in protecting, defending, and maximizing the value of portfolios of trademarks, designs, and patents, and as president of APRAM and an active participant in EUIPO, Julien is one of the most knowledgeable and dedicated voices in the intellectual property ecosystem in France and Europe.
Ideas Roam Free: Why This Is Good News
An idea is a thought. And as long as it remains merely a thought, it cannot be protected anywhere—not in France, not in the United States, nor anywhere else. This is not a legal loophole but a fundamental principle: if we protected ideas, we would still be living in caves. It would be an absolute barrier to creativity and innovation.
This is perfectly illustrated by the example of Facebook:
The Winklevoss brothers had come up with the idea for a social network at Harvard. They had Mark Zuckerberg work on it. He brought the idea to life much better than they did. They walked away with millions in the settlement, but not because their idea had been stolen. The idea, in and of itself, was worthless from a legal standpoint. What mattered was what Zuckerberg had done with it.
True protection begins at the moment of materialization.
The brand: the first thing to consider
Before filing any application or undertaking any technical development, there is one question to ask:
What will you call what you're creating?
A name is what sets your product or service apart from the competition. And a name is protected by a trademark: an industrial property right that grants you a monopoly over that distinctive symbol within the territory where it is registered.
Registering a trademark ensures that a third party cannot use the same name (or a similar name) for comparable products or services. It also helps avoid the confusion that overly descriptive trademarks face: vente-privée.com struggled for a long time to defend itself against its competitors, precisely because its name described its business too directly. BlaBlaCar learned this lesson from covoiturage.fr for exactly the same reason.
A French trademark in a single class of goods or services costs approximately 190 euros at the INPI for 10 years of protection, which can be renewed indefinitely. It’s inexpensive and is often the best investment a startup can make.
The symbols ™, ® and © are never required, but they signal to the market that the name belongs to you and that others cannot claim it as their own.
Copyright: Automatic Protection, but Not Without Proof
Unlike trademarks or patents, copyright does not require registration. It arises automatically upon creation, provided that the work is original —that is, that it bears the imprint of its author’s personality.
This includes computer code, graphical interfaces, visuals, text, designs, and more—anything that bears the creator’s personal touch. You don’t have to spend a penny to enjoy these benefits.
But there's a catch: proof. If someone copies you, you still have to prove that you created it first. And that's where many people fall short.
There are many ways to prove prior use:
- The INPI's "e-solo " service, starting at 15 euros, allows you to file digital files and obtain a certified date of creation.
- Blockchain provides the same guarantee in an automated way, with subscription plans available for prolific creators.
- A judicial officer's report also constitutes strong evidence.
- And the good old registered letter to oneself can work—as long as you never open it until you need to present it in court.
Generative AI and Copyright: Who Owns the Work?
That is the question that has all legal experts abuzz today.
Under French law, copyright protects works that bear the imprint of their author’s personality. A work generated entirely by a basic prompt on ChatGPT, without any creative input from the user, should therefore not be eligible for this protection.
On the other hand, once you rework, refine, and personalize the result, you begin to put your own stamp on it. And that’s when protection can arise. The terms of service for AI tools (which change regularly) often stipulate that the outputs belong to the user who provided the prompt. But one must still be able to prove this and demonstrate that the work is not an unintentional infringement of an existing creation.
An American artist won a painting contest with a work generated by Midjourney. No one knew it. The issue of transparency and proof lies at the heart of these new challenges.
Designs & Patents: Protecting Appearance and Invention
Designs(or “design,” a much more descriptive term) protect the appearance of a product or interface. A watch, a pen, a mobile app, a mug—as long as the appearance is new, it can be registered. Protection lasts up to 25 years and is renewable in 5-year increments.
A single object can be protected by multiple forms of intellectual property. An iPhone is protected by three trademarks (Apple, iPhone, and the apple logo), patents on its technologies, industrial design rights, and copyrights on its software.
Intellectual property is rarely a single form of protection; it is a portfolio.
A patent, on the other hand, protects a technical invention: a new solution to a technical problem. It is the most complex type of intellectual property to obtain, the most expensive, and the one that gives rise to the most misconceptions. No, you cannot patent an idea. You can only patent a concrete, feasible, new, and inventive invention.
Protecting Your Ideas: A Habit, Not Just a Formality
The underlying message of this episode is simple and powerful.
Protecting ideas doesn’t start with a patent. It starts with a name, a trademark, or a date. It develops as the idea takes shape, and it’s all the more effectively defended when you’ve planned ahead, documented it, and provided evidence.
That is precisely the goal of LEXpérience: to provide practical, real-world insights so that the law becomes second nature rather than an unpleasant surprise.