Patent application of interest to national defence

A patent of interest to national defence is a patent application whose subject matter, owing to its relevance to defence, undergoes prior review by the State and may be kept secret. The French Intellectual Property Code organises this review for every patent application filed in France, the content of which is brought to the attention of the Minister responsible for defence. During the review period, and where applicable beyond it, the invention may be neither disclosed nor freely exploited.

Prior review

Every patent application filed with INPI is subject, for five months from filing, to a prohibition on disclosure and free exploitation, giving the Minister responsible for defence time to examine it. The prohibition may be lifted at any time by authorisation. Conversely, it may be extended at the Minister’s request for a renewable period of one year, in which case the application may be neither published nor granted. Persons domiciled in France must, in principle, file their applications in France before any filing abroad, or obtain authorisation, so that this review can take place.

Consequences of extension

Extension of the prohibition entitles the proprietor to compensation for the loss suffered, set by the court failing agreement. The State may also obtain an ex officio licence for national defence purposes, or expropriate the invention, against compensation. Breach of the prohibition on disclosure or exploitation is a criminal offence, and confidentiality must be organised accordingly within the business and with its advisers.

Interplay with European and international procedures

The European Patent Convention allows States to require that European patent applications be filed with their national office, so that this review can be carried out. A European application not forwarded to the EPO within the prescribed period, because it is kept secret, is deemed withdrawn and may be subject to conversion into a national application. The Patent Cooperation Treaty likewise reserves national security measures, and the TRIPS Agreement allows the measures that States consider necessary for the protection of their essential security interests.

Key points

Every patent application filed in France undergoes a national defence review that prohibits, for at least five months, disclosure or free exploitation of the invention. That review may also govern foreign filings by applicants domiciled in France. For sensitive or dual-use inventions, this period should be built into the timetable for foreign extensions and publications, and early authorisation should be sought where filing abroad is urgent.

---

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

Patent litigation · Unified Patent Court · UPC case law · Tell us about your situation