Articles L612-8 and L612-9 of the French IP Code provide that the Ministry in charge of Defense is authorized to read any patent application that is filed before the French patent office and that the applicant(s) of a French/European/PCT patent application as first filing are not authorized to disclose or work the invention as long as they did not receive authorization from the Ministry in charge of Defense via the French patent office. This usually takes 1 to 2 months from filing date.
This procedure allows the Ministry in charge of Defense to isolate relevant inventions from the normal proceedings to avoid the publication of the corresponding patent applications.
Unlike other countries, France has indeed established rules concerning inventions « likely to interest French Defense », « sensitive » or « allegedly sensitive », and for which inventors and applicants have obligations with respect to Ministry in charge of French Defense, in order to avoid their disclosure.
A guide published by Ministry in charge of French Defense lists technologies which are likely to interest French Defense. It should be borne in mind that some technologies can be dual, meaning they can have both civil and military applications, and in such a case, one must be very cautious to think that the invention can also have military applications, when the inventor(s)/applicant(s) only see the civil application.
French patent attorneys are well aware of these regulations and therefore always comply with such regulations when a first filing is made in France.
However, the situation can be more problematic when the first filing is intended abroad outside France, involving either a French applicant or a French inventor.
The important rule to remember is that any filing for any invention (even not likely to interest French Defense) involving a French applicant and intended as a European patent application or as a PCT application and not claiming the priority of an earlier French patent application must be done with France (INPI) as receiving office, as provided in Articles L614-2 and L614-18 of the French IP Code.
If the first filing is not intended as a European patent application or as a PCT application, then it is possible to obtain clearance from the French Defense to file abroad. In practice, a disclosure of the invention is sent to French Defense, with intended applicants and inventors and intended country for first filing. An authorized person at French patent office studies the application and subsequently either authorizes or not filing abroad. Such clearance usually takes two weeks. As indicated above, if after such first filing abroad, a European patent application or PCT application is contemplated, France (INPI) must be the receiving office, as such European patent application or PCT application would claim a foreign priority but not a French priority.
Such clearance to file abroad is in principle only required for inventions « likely to interest French Defense », « sensitive » or « allegedly sensitive » with a French applicant.
However, as French IP code also provides in Article L615-13 sanctions against individuals who did not respect Articles L612-8 and L612-9 of the same French IP Code, first filings outside France involving a French applicant and/or a French inventor should be treated with extreme caution, except for inventions that would clearly not interest French Defense, which can be difficult to assess for dual inventions mentioned above, with both civil and military applications. In case of doubt, clearance from French Defense should be sought.