It has already been pointed out several times in this blog that any disclosure of an invention before its filing date, even by the inventor himself, will destroy the novelty of the invention and therefore prevent a patent from being granted on that invention.
It is therefore necessary to wait for a patent application to be filed before starting to disclose or market the corresponding invention.
Does this mean that you can start marketing and selling the subject matter of a patent the day after the patent application has been filed?
The answer can be found in Article L.612-9 of the French Intellectual Property Law, which states that inventions that are the subject to patent applications may not be disclosed or freely exploited until authorization has been granted for this purpose. This authorization is granted by the Director of the French Intellectual Property Office (INPI) with an advice of the French Defense Minister.
As a result, your invention cannot be disclosed, even after your patent application has been filed, until the French National Security Agency has given you the corresponding authorization.
In fact, the French National Security Agency has the power to expropriate your invention if it considers that your invention is of interest to the nation, justifying the postponement or prohibition of its disclosure, and/or if the invention is prejudicial to the interests of defense or national security.
In practice, and for 98% of cases, disclosure authorization is granted to the applicant within 4 to 6 weeks after the filing of the patent application This authorization is deemed to have been granted automatically at the end of a period of 5 months from the date of filing of the patent application, if no contrary instruction has been formulated.
Can I be prevented from disclosing my invention beyond the prescribed period?
Article L.612-10 of the French Intellectual Property Law allows for a possible extension of the 5-month period, at the request of the French Defense Minister. This extension is made for a renewable period of one year, and the resulting ban may be lifted at any time.
What inventions are likely to be of interest to the French National Security Agency?
A ministerial decree lists equipment assimilated to war material and dual-use goods that are therefore likely to be of interest to the nation. This list includes the following equipment and goods:
Weapons and devices of war
Nuclear materials, installations and equipment
Special materials and related equipment
Computers, telecommunications and information security systems
Sensors and lasers
Navigation and aero-electronic goods
Marine, aerospace and propulsion equipment.
Radar, sonar and similar systems
Encryption, decryption and data protection techniques
Unmanned observation vehicles
Alloys, structures and materials
Explosive, nuclear or hazardous materials
Nuclear, radiological, biological or chemical protection
Electronic, infrared and optoelectronic components and devices for military use
Airdrops and military parachuting
Techniques for taking off, landing and launching military aircraft
Gas turbines, rocket engines and naval propulsion
Surface warships and submarines and their equipment
Submarines, weapons and submarine warfare systems
Directed energy devices
This is a non-exhaustive and evolving list.
It should also be noted that companies that manufacture items that may be of interest to the French National Security Agency are required to notify the authorities of the filing of patent applications, made by them or on their behalf, concerning these materials and goods within eight days of the filing of the patent application.
This declaration can be made in writing or electronically via the French Defense Ministry website.
Conversely, inventions that do not fall into any of the above categories and for which communication to the public or exploitation would not be prejudicial to the interests of defense or national security will be considered "non-sensitive". Where appropriate, the aforementioned authorization will be sent to the applicant promptly after the patent application has been filed.
What happens if my invention is classified?
If your patent application is classified, you will not be authorized to disclose or exploit it outside any link with national defense. If this is the case, you may be able to claim compensation for the loss suffered. It goes without saying that compensation levels, award conditions and negotiation procedures are confidential information.
It is important to note that it is necessary to wait for a disclosure authorization before marketing or disclosing an invention, even if the risk of being classified is low for more than 98% of filed inventions. Despite the low risk, we can only recommend that you nevertheless respect this principle.
Article 411-6 of The French Penal Law states that "The act of delivering or making accessible to a foreign power, a foreign company or organization or one under foreign control, or to their agents, information, processes, objects, documents, computerized data or files, the use, disclosure or assembly of which is likely to undermine the fundamental interests of the nation, is punishable by fifteen years' imprisonment and a fine of €225,000".
Finally, you need to be careful, and contact your IP attorney to consider the various possible scenarios, particularly if your invention is in one of the technical fields listed in this article.
Find all our articles on intellectual property on our blog #IPBoardingPass.