Section 1: European patents
This section relates to the application of the convention made at Munich on October 5, 1973, hereinafter referred to as the “Munich Convention”.
Paragraph 1: Filing of European patent applications
Any European patent application may be filed with the National Institute of Industrial Property either at its headquarters or, where necessary, in its regional centers, according to procedures which are specified by regulation.
The application must be filed with the National Institute of Industrial Property, when the applicant has his domicile or registered office in France and does not claim the priority of an earlier filing in France.
The Minister in charge of Defense is authorized to examine, on a confidential basis, with the National Institute of Industrial Property, European patent applications filed with this institute.
Inventions which are the subject of European patent applications, filed with the National Institute of Industrial Property, cannot be disclosed and exploited freely as long as an authorization has not been granted for this purpose.
During this period, requests cannot be made public; no certified copy may be issued without authorization.
The authorizations provided for in the first and second paragraphs of this article are granted by the Minister responsible for industrial property on the advice of the Minister responsible for Defense.
The authorization provided for in the first paragraph may be granted at any time. Subject to the provisions of the first paragraph of Article L. 614-5, it is automatically acquired at the end of a period of four months from the filing of the application or, when priority has been claimed, at expiry of a period of fourteen months from the priority date.
Before the end of one or other of the deadlines mentioned in the last paragraph of Article L. 614-4, the prohibitions provided for in said article may be extended, on request of the Minister responsible for defense for a period of one renewable year. In this case, the application is not forwarded to the European Patent Office. Extended bans can be lifted at any time.
In the event of an extension of the prohibitions, the provisions of the second and third paragraphs of article L. 612-10 of this code are applicable.
A European patent application can only be transformed into a French patent application in the cases provided for in Article 135-1 (a) of the Munich Convention.
In these cases and under penalty of rejection of his French patent application, the applicant must meet the conditions set by regulation.
If a search report was drawn up before processing the request, this report takes the place of the search report provided for in Article L. 612-15.
Paragraph 2: Effects in France of European patents
When the text, in which the European Patent Office created by the Munich Convention grants a European patent or maintains such a patent in a modified form, is not drafted in French, the patent holder must provide the Institute with national industrial property a translation of this text under the conditions and deadline determined by decree of the Council of State. Failure to meet this obligation, the patent is ineffective.
Within three months of the publication of European patent applications and when the language of the proceedings is not French, the National Institute of Industrial Property shall translate and publish in French the abstracts provided for in Article 78, paragraph 1-e, of the Munich Convention.
The rights defined in Articles L. 613-3 to L. 613-7, L. 615-4 and L. 615-5 of this code may be exercised from the date on which a European patent application is published in accordance with provisions of Article 93 of the Munich Convention.
If the publication was made in a language other than French, the rights mentioned in the previous paragraph can only be exercised from the date on which a French translation of the claims has been published by the National Institute of industrial property, at the request of the applicant, under the conditions set by decree of the Council of State, or has been notified to the alleged infringer.
When a translation into the French language has been produced under the conditions provided for in Article L. 614-7 or in the second paragraph of Article L. 614-9, this translation is considered authentic if the European patent application or the European patent confers in the text of the translation a less extensive protection than that conferred by the said application or by the said patent in the language in which the application was filed.
However, a revised translation can be produced at any time by the owner of the application or patent. However, this translation only takes effect when the conditions provided for in Article L. 614-7 or in the second paragraph of Article L. 614-9 have been met.
Anyone who has, in good faith, begun to exploit an invention or made effective and serious preparations for this purpose, without such exploitation constituting an infringement of the application or of the patent in the text of the initial translation, may, as soon as the revised translation has taken effect, continue to operate free of charge in his business or for its needs.
Notwithstanding the above provisions, the language of the proceedings shall prevail in actions for nullity.
The entry in the European Patent Register of acts transmitting or modifying the rights attached to a European patent application or to a European patent makes these acts enforceable against third parties.
The invalidity of the European patent is pronounced with regard to France by court order for any of the grounds referred to in Article 138, paragraph 1, of the Munich Convention.
If the grounds for invalidity affect the patent only in part, the invalidity is pronounced in the form of a limitation of the claims, description or drawings.
Insofar as a French patent covers an invention for which a European patent has been granted to the same inventor or to his successor in title with the same filing or priority date, the French patent ceases to produce its effects, i.e. on the date on which the time limit set for the filing of the opposition to the European patent has expired without an opposition having been filed, ie on the date on which the opposition procedure is closed, the European patent having been maintained.
However, when the French patent was issued on a date subsequent to one or the other, as the case may be, of those fixed in the preceding paragraph, this patent does not have effect.
The extinction or subsequent cancellation of the European patent does not affect the provisions of this Article.
(Law nº 94-102 of February 5, 1994 art. 27, art. 28 Official Journal of February 8, 1994) A French patent application or a French patent and a European patent application or a European patent having the same filing date or the same priority date, covering the same invention and belonging to the same inventor or to his successor in title, cannot, for the common parts, be the subject, independently of one another, of a transfer, pledge, pledge or a concession of exploitation rights, on pain of nullity.
By way of derogation from Article L. 613-9, the transfer or modification of the rights attached to the French patent application or to the French patent is only made enforceable against third parties by its entry in the national patent register to the extent that the same transfer or the same modification of the rights attached to the European patent application or to the European patent has been entered in the European Patent Register.
The French patent application or the French patent and the right of priority for the filing of a European patent application cannot be transferred independently of one another.
(Law nº 94-102 of February 5, 1994 art. 29 Official Journal of February 8, 1994) The court seized of an action for infringement of a French patent which covers the same invention as a European patent applied for by the same inventor or granted to the latter or to his successor in title with the same priority date shall stay proceedings until ” on the date on which the French patent ceases to produce its effects under the terms of Article L. 614-13 or until the date on which the European patent application is rejected, withdrawn or deemed withdrawn, or the European patent revoked.
If the action for infringement has been brought on the basis of the French patent alone, the applicant may, upon resumption of the proceedings, continue the latter by substituting the European patent for the French patent for facts subsequent to the date on which the French patent ceases to produce its effects and for the common parts.
If an infringement action is brought on the basis of both a French patent and a European patent, neither criminal penalties nor civil remedies can be combined.
If the action was brought on the basis of only one of the two patents, a new action on the basis of the other patent, for the same facts, cannot be brought by the same plaintiff, against the same defendant.
A decree in Council of State will determine the modalities of application of this section, in particular as regards the application of the provisions of article 137-2 of the Munich convention.