Principle
What an administrative appeal is
Since the INPI is an administrative body, the decisions of its president are of an « administrative » nature (INPI Examination Guidelines, I-E 3.1).
Thus, INPI decisions may be subject to an administrative appeal (Articles 18 et seq. of Law No. 2000-321 of April 12, 2000 on the rights of citizens in their relations with administrative bodies).
Indeed, an administrative appeal is a right available even in the absence of specific legal provisions (Circular of February 9, 1995 on the handling of complaints addressed to the administration, point 2.1).
It is, in fact, a request for the INPI to re-examine the file.
If the INPI is in the wrong, it may then amend its decision.
What an administrative appeal is not
An administrative appeal will not allow you to obtain the administration’s leniency…
If you missed a deadline by 10 seconds, the rejection decision will not be amended.
Procedure
Form
There is no specific form required for this appeal.
However, this appeal must at least be:
- in writing (a simple letter suffices);
- with factual and legal arguments;
- referencing the decision in question;
- accompanied by supporting documents (where applicable).
Time limit
Rejection decision
According to the INPI, the administrative appeal must be filed within 4 months from the date of the decision (INPI Examination Guidelines, I-E 3.1, citing the ruling of the French Council of State, Ternon ruling, October 26, 2001, No. 197018). After this period expires, the INPI can no longer reverse its decision.
Indeed, the Ternon ruling states:
Considering that, except where it complies with a request from the beneficiary, the administration may not withdraw an explicit individual decision creating rights, if it is unlawful, except within a period of four months following the adoption of that decision.
It must be acknowledged that a rejection decision:
- does not satisfy the applicant;
- is an individual decision (as opposed to a regulatory decision establishing general and impersonal provisions);
- is an explicit decision (the decision is issued in writing);
- creates rights (i.e., for third parties, by analogy with French Council of State, Sect. May 4, 1984, Epoux Poissonnier, No. 15391, the withdrawal of a building permit may create rights in favor of neighbors).
Nevertheless, this ruling must be put into perspective: the 4-month period mentioned therein appears to actually be the « extended contentious appeal period » (2 months under Article R421-1 of the French Code of Administrative Justice + 2 months for the administration’s response period under Article 21 of Law No. 2000-321 of April 12, 2000 on the rights of citizens in their relations with administrative bodies).
Thus, the administrative judge intends (in my view) to indicate that an administrative authority may only withdraw an unlawful decision within the time limit for contentious appeal, possibly extended (in the case at hand, the time limit for contentious appeal is 1 month, Article R411-20 of the French Intellectual Property Code, or 3 months if the person filing the appeal is abroad, Article R411-20 of the French Intellectual Property Code together with Article 643 of the French Code of Civil Procedure, and it is not extendable as indicated below).
Lapse Decision
Lapse decisions (i.e., non-payment of an annuity) do not appear to be subject to the contentious appeal deadline (INPI Examination Guidelines, I-E 3.1 citing the decision of the Paris Court of Appeal, 4th ch., sect. A, 14 March 2007, Case No. 2006/13425).
Indeed, the judicial court emphasizes that the decision of the INPI President noting the lapse is merely a declaratory decision « which only notes a determined situation […], without the authority having any discretionary power« .
Therefore, this decision does not create rights.
The informal appeal may thus be filed at any time.
Nevertheless, it is almost useless to file an informal appeal outside the contentious appeal deadline (of 1 month, R411-20 IPC or 3 months if the appellant is abroad R411-20 IPC together with 643 CCP): if the INPI Director responds « PROUT« , you will not be able to do anything.
Extension of the Deadline to File a Contentious Appeal?
Usually, the informal appeal allows for an extension of the deadline to file a contentious appeal: the deadline for filing an appeal then starts from the date of the decision rejecting the informal appeal (Council of State, 7 October 2009, No. 322581).
However, this does not appear to be the case here (INPI Examination Guidelines, I-E 3.1).
Indeed, it should not be forgotten that the contentious appeal available for decisions of the INPI Director is a judicial appeal and not an administrative contentious appeal (L411-4 IPC): therefore, the administrative case law on extension does not appear to be applicable.
Person Who May File the Informal Appeal
The proprietor naturally comes to mind, but it appears that any third party may do so (by analogy with Council of State, sect., opinion, 15 July 2004, No. 266479).
INPI Decision
In Case of a Response from the INPI
The solution is then simple: if the INPI provides a response within 2 months, this response constitutes the INPI decision (Article 21 of the Law No. 2000-321 of 12 April 2000 on the rights of citizens in their relations with administrations).
In Case of No Response from the INPI
The Law of 12 November 2013 establishes the principle that the silence of the administration on a request constitutes acceptance (under certain conditions). These provisions apply from 12 November 2014 to requests addressed to state administrations and their public establishments from that date.
However, in the absence of a response within 2 months, the INPI’s silence signifies an implicit rejection of the appeal.
Indeed, the Law No. 2013-1005 of 12 November 2013 explicitly provides that administrative appeals are excluded from the new rule « silence of the administration constitutes acceptance » (see Article 21, 2° of the Law No. 2000-321 of 12 April 2000 on the rights of citizens in their relations with administrations).