What a graceful remedy
As the INPI is an administration, the decisions of its president are thus of a nature " administrative »(INPI Examination Guidelines, IE 3.1).
Thus, the decisions of the INPI may be the subject of a gracious appeal (Article 18 and following of the Law No. 2000-321 of 12 April 2000 on the Rights of Citizens in their Relations with Administrations).
Indeed, the appeal is a recourse opened by right even in the absence of text (Circular of 9 February 1995 on the treatment of claims addressed to the administrationpoint 2.1)
It is in fact a request for review of the file by the INPI.
If the INPI is wrong, it can then change its decision.
What a graceful remedy is not
A gracious appeal will not allow you to obtain the indulgence from the administration ...
If you missed 10 seconds, the rejection decision will not be changed.
There is no form for this remedy.
Nevertheless, this appeal must be submitted at least:
- in writing (a simple letter is enough)
- with the factual and legal arguments,
- a reference to the decision in question;
- accompanied by supporting documents (where applicable).
According to the INPI, the recourse graceful must be presented under 4 months from the decision (INPI Examination Guidelines, IE 3.1 citing the judgment of Council of State, Ternon judgment, 26 October 2001 No. 197018): after the expiry of this period, the INPI can not reconsider its decision.
In fact, the Ternon judgment states:
Whereas, and out of the case where a request from the beneficiary is satisfied, the administration can not withdraw an explicit individual decision creating rightsif it is illegal, only within four months of making that decision.
It must be recognized 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 made in writing);
- is a creator of rights (ie for third parties, by analogy with Council of State, Sect. May 4, 1984, Epoux Poissonnier, n ° 15391, the withdrawal of a building permit may create rights for the benefit of neighbors).
However, it is necessary to put into perspective this judgment: the 4-month period mentioned in this one seems to be in reality the deadline ofextended litigation »(2 months of the article R421-1 code of administrative justice + 2 months of the response time of the Administration of Article 21 of the Law No. 2000-321 of 12 April 2000 on the Rights of Citizens in their Relations with Administrations).
Thus, the administrative judge wishes (in my opinion) to indicate thatan administrative authority may withdraw an unlawful decision only within the period of contentious appeal possibly extended (In this case, the period of appeal is 1 month, R411-20 CPI or 3 months if the person making the appeal is abroad R411-20 CPI together 643 CPC, and it is not extendable as shown below).
Lapse decisions (ie non-payment of an annuity) do not appear to be contained within the litigation period (INPI Examination Guidelines, IE 3.1 citing the decision of the Court of Appeal of Paris, 4th ch., Sect. A, March 14, 2007, RG No. 2006/13425).
Indeed, the judicial judge emphasizes the fact that the decision of the president of the INPI declaring the forfeiture is only a recognitive decision " which only [makes] a specific situation [...], without the authority having any discretion ».
Therefore, this decision is not creating right.
The graceful recourse can thus be presented at any time.
Nevertheless, it is almost useless to lodge an appeal outside the litigation period (1 month, R411-20 CPI or 3 months if the person making the appeal is abroad R411-20 CPI together 643 CPC): if the director of the INPI answers you « PROUT You will not be able to do anything.
Extension of the time limit for filing a contentious appeal?
Usually, the free recourse allows to extend the time limit to form a contentious appeal: the time limit to lodge an appeal starting then from the decision of rejection of the ex gratia appeal (State Council, October 7, 2009, No. 322581).
Nevertheless, this does not seem to be the case here (INPI Examination Guidelines, IE 3.1).
Indeed, it should not be forgotten that the open appeal for decisions by the Director of the INPI is a judicial remedy and not an administrative dispute (L411-4 CPI): therefore, the administrative case law on prorogation does not seem to apply.
Person who can file an appeal
One naturally thinks of the holder, but it seems that any third party can do it (by analogy with Council of State, sect., Opinion, July 15, 2004, n ° 266479).
In response to the INPI
The solution is simple: if the INPI gives a response under 2 months, this answer is the decision of the INPI (Article 21 of the Law No. 2000-321 of 12 April 2000 on the Rights of Citizens in their Relations with Administrations).
In the absence of a response from the INPI
The law of November 12, 2013 posits the principle that the silence kept by the administration on a request is agreement (under certain conditions). These provisions apply from November 12, 2014 to requests addressed to the administrations of the State and its public institutions from that date.
Nevertheless, if there is no answer under 2 months, the silence of the INPI means a rejection implied recourse.
Indeed, the Law n ° 2013-1005 of November 12, 2013 explicitly provides that administrative remedies are exempt from the new rule the silence of the administration is worth 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).