Procedure for Filing a Patent Application with the INPI
Principle
When a patent application is filed in France, it is automatically transmitted to the national defense administration. Under L612-8 CPI, this transmission allows authorized agents to verify whether the invention has sensitive implications for national defense (R612-26 CPI).
During this analysis period, any disclosure or publication of the invention is prohibited (L612-9 CPI).
Authorization for Disclosure
If, following this analysis, the invention does not raise any national defense concerns, the administration may issue an authorization for disclosure (L612-9 CPI).
This authorization allows the patent to proceed to publication and further processing, including at the European or international level.
If no information is provided to the applicant within 5 months, the authorization for disclosure is deemed granted (L612-9 CPI).
Since Decree No. 2022-196 of February 17, 2022, decisions regarding disclosure are now made by the INPI Director, upon consultation with the Ministry of Defense.
Prohibition of Disclosure
In cases where the invention has sensitive implications, a prohibition on disclosure and free exploitation may be imposed (L612-10 CPI).
The application is kept confidential, but this prohibition entitles the applicant to compensation, which may be determined by a court (L612-10 CPI).
The applicant may neither exploit nor assign the invention without authorization.
First Filing?
It is worth noting that the provisions in these articles (and thus on this page) do not specifically apply to first filings.
Thus, it is entirely « logical » that authorization for disclosure must be awaited even for a French application claiming priority from a U.S. application.
Which is quite troubling (read: « completely absurd »)…
Procedure for Filing a Patent Application Abroad
Any applicant wishing to make a first filing abroad (without prior filing in France) must obtain express authorization from the French government.
The interministerial instruction 9062/DN/CAB of February 13, 1973, specifies the procedure for determining whether an invention concerns national defense: the prior authorization procedure.
The authorization request must be submitted to the Ministry of Defense, specifically the ministerial delegation for armaments, patents, and inventions office, which has 5 months to respond (L614-2 CPI).
This authorization request must be accompanied by the specification, drawings, and the claims.
The penalty for violating the provisions of Article L614-2 CPI is set out in Article L615-16 CPI.
Anyone who knowingly violates one of the obligations or prohibitions set forth in the second paragraph of Article L. 614-2 […] shall be liable to a fine of 6,000 euros. If the violation has prejudiced national defense, a prison sentence of five years may also be imposed.
Additionally, the criminal penalty mentioned above is provided under Article L411-6 of the Penal Code:
The act of delivering or making accessible to a foreign power, foreign enterprise or organization, or one under foreign control, or to their agents, information, processes, objects, documents, computerized data, or files whose exploitation, disclosure, or compilation is likely to harm the fundamental interests of the nation is punishable by fifteen years of criminal imprisonment and a fine of 225,000 euros.