Every day, innovation pushes back the frontiers of technology. Some inventions can therefore have a direct impact on public order, public morality and national defense. To avoid the risk of an invention being used for malicious purposes, the French government has set up a procedure for registering patents.
Specific features of invention patents
A patent can be obtained for any invention, product or process, in any field of technology, provided it meets the conditions for patentability. Patents filed in this way are examined by the patent offices, and published after 18 months, making the content of the patent available to the public and allowing anyone to reproduce the invention covered by the patent, subject of course to prosecution for infringement. The granting of a patent thus represents a compromise between an office and an inventor, the latter disclosing his invention in exchange for a monopoly on it for 20 years.
Inventions contrary to public order and morality
The question of publication can sometimes pose a problem when the invention concerns a subject that could be harmful to society. For example, patents relating to inventions contrary to public order and morality are excluded from patentability. On a different note, the publication of inventions relating toarmaments or any other element that could be used in any way for national defense raises questions. It would be highly detrimental if access to the information contained in patents concerning, for example, the improvement of certain weapons, anti-armament protection, or software such as that used by the NSA to eavesdrop on telephone conversations, were to fall into the hands of terrorists. The same applies to dual-use inventions, such as chemical compounds, which can be used for national defense purposes in addition to their original purpose.
Secrecy for risky inventions
To address these concerns, the French government, via the Ministry of Defense, has introduced prerogatives to verify whether or not an invention presents a risk of being used maliciously. Thus, inventions in technical fields close to national defense and made on French soil will have to be the subject of a French patent application before any foreign filing. The Intellectual Property Office (BPI) of the Direction Générale de l’Armement (DGA) is then responsible for detecting inventions likely to present risks, and then verifying in detail whether or not the invention really does present a risk, and issuing a disclosure authorization if not, which is compulsory to continue with the patent grant procedure. If a patent application is placed under a ban, the duration is one year, renewable every year, with the possibility of lifting the ban at any time. The grant procedure is then placed on stand-by for the duration of the secrecy period, and the patent holder is entitled to compensation commensurate with the loss suffered.
Implementing the identification of the patents concerned
In order to facilitate the identification of these patent applications by the BPI, the French Defense Code (article L. 2332-6) stipulates that companies manufacturing items that may be relevant to national defense, such as war materiel, weapons and munitions, are required to notify the administration of the filing of patent applications, made by them or on their behalf, concerning such materiel and goods within eight days of the filing of the patent application.
In practice, according to the DGA, this obligation was currently only rarely implemented, and the need to detect such applications led to the mobilization of numerous technical experts, whereas the risk of disclosure of a patent application likely to constitute a threat to the nation’s interests would be significantly reduced if applicants used certain means of declaration to the Ministry of the Armed Forces, as soon as the application was filed. However, the terms and conditions of this declaration have yet to be specified, leading to uncertainties in its implementation. Penalties for non-compliance were a contrario already provided for in article L. 2339-3, and amounted to five years’ imprisonment and a €75,000 fine, possibly increased to ten years’ imprisonment and a €500,000 fine if the offences were committed by an organized gang.
What procedure should I follow for my invention?
A decree dated April 14, 2017 and an order dated May 4, 2017 finally specified the terms and conditions for implementing this obligation to declare to the authorities. The decree specifies the content of the declaration, which must indicate the date of filing and the number of the patent application, as well as any indications relating to the government contract under which the invention was made (i.e., the number and date of notification of the contract, as well as the name of the purchasing department). In fact, there is no need for this declaration to contain a summary or a copy of the patent application, which the DGA services will be able to retrieve via the INPI.
This decree refers to the decree establishing the list of materials assimilated to war materials and dual-use goods. It stipulates that the equipment and goods referred to in article L. 2332-6 are those listed :
In the annex to Council Regulation (EC) No. 428/2009 of May 5, 2009, which obviously includes weapons and implements of war, but also nuclear materials, installations and equipment, special materials and related equipment, materials processing, electronics, computers, telecommunications and ” information security ” equipment , sensors, and so on. lasers, navigation and aeroelectronics goods, marine-related goods, and aerospace and propulsion-related goods.
The second paragraph of article L. 2335-2 of the French Defense Code, which is defined in the Order of June 27, 2012, article L. 2331-1 of the French National Defense Code and article R. 311-2 of the French Internal Security Code, contains long lists of materials and goods such as different types of weapons, ammunition, devices and chemical compounds that may be used in the composition of biological weapons…
Finally, the second article of this decree also stipulates that the declaration of filing of the patent application must be sent either in writing to the DGA’s Intellectual Property and General Affairs Sub-Directorate, or in electronic form via the Ministry of Defense website, using the “electronic submission” portal, and entering DGA-Intellectual Property in the “Your question concerns” box.
These two new texts provide a better framework for filing applications relating to national defense, and increase security by making it easier to identify and declare the inventions concerned.
