Obligation to apply in France
- National defence
- According to the articles L. 612-8 and L. 612-9 of the French Intellectal Property Code :
"The inventions, object of an application for a patent, can not be revealed and exploited freely
as long as an authorisation was granted for that purpose"
...
" Authorisations foreseen to the first and to the second paragraph of the present article are
granted by the the Minister in charge of the industrial property on opinion of the Minister in charge of the defence. "
The publication which would result from an application filed abroad, for example a country where the applications
are a patent published 18 months after their filings, would be contrary to the article L612-9 and would imply
automatically the penal sanction foreseen by the article L615-13 which indicates that:
" Without prejudice of more grave punishments foreseen in infringement on the
security of the state, whoever will have deliberately broken one of the bans foreseen in articles L612-9 and L612-10,
is punished for a fine of 30.000 F..."
- International application
- By means of filings of international patent applications, the authorisation of the French Minister of Defence could have been avoided.
However a specific instruction is even more express, it follows from the article L 614-18 which indicates that:
" The international patent applications of protection of inventions, formulated by physical or moral persons having their place
of residence or their seat in France, shall be applied in front of the French Office when the priority of a previous
application in France is not claimed..."(in other words, for first patent applications).
The French Intellectual Property code foresees in case of non compliance with this obligation, a specific sanction
described in the article L 615-15:
" Without prejudice of more grave punishments foreseen in infringement on the
security of the state, whoever will have deliberately broken one of the bans foreseen in articles L614-18 and L614-20,
is punished for a fine of 40.000 F..."
- Conclusions
- As a consequence, it appears of this reading that the French Intellectual Property Code does not only reserve
the intervention of the French Minister of Defence. It establishes with the article L 614-18, L. 615-13 and L. 615-15 an imperative prescription of application in France.
This prescription is not based on considerations of national defence. Supported by a double penalty, there is so a double obligation :
- an obligation to make (apply the French patent applications in front of the French Office)
and
- an obligation to not make (not apply international patent applications somewhere else that in front of the French Office)
So that the statement is complete.
It is necessary to draw the attention on the presence, in every resumption, of the word deliberately.
This one will be considered as :
- a condition of application of the sanction, in the sense that an operation made inadvertently could be forgiven,
but will be also considered as
- an aggravating circumstance, and with difficulty remedy, if the institution of a systematic practice should be discovered.