Tuesday, January 05, 2010

Cloak and Dagger Filing - just leave your smartcard at home

My contribution, call it that if you will, of today, relates to a recent friendly, but nonetheless firmly worded, circular sent by the French Ministry of Defense to all French IP attorney firms at the end of November (plus I assume, also to counsel working in industry). In it, the DGA (Direction Générale de l'Armement), responsible for checking the content of all French, European and PCT patent applications filed through the French patent office (INPI), has reminded all practitioners of the need to think carefully before unholstering their Smartcard and filing their patent applications using the EASY/PCT SAFE software that so many national offices now attempt to ram down our throats, despite it being platform and operating system dependent on one very large operating system supplier.

To be brief, the instructions handed down in the circular state that electronic filing software as provided by the INPI / EPO / OMPI is not certified as "defense security compliant", and thus advises as follows:

(a) if the subject matter of the patent application relates to contract research or development financed by the MoD, inter alia, those containing a required security notice ;

(b) or if the subject matter of the patent application can be of military usefulness which confers operational superiority (to France of course)

then the electronic filing software should not be used, and the usual channels of paper filing are mandatory.

It transpires that the reason for this circular is apparently linked to one or more "near misses" with regard to potential breaches of national security, although for obvious reasons no further details of the "near miss" are given. The fact that the DGA has taken the trouble to write such a circular is significant in itself, as usually this is a very discrete department not prone to such displays.

Now I can see people at the back raising an eyebrow or two about how vague the expressions "of military usefulness" and "operational superiority" are, and how extensive, nay expansive, they may seem. Indeed, and to this end, the DGA has kindly provided a short guide of two A4 pages styled as a FAQ as to how to go about determining whether the applicant is likely or not to fall foul of the military secrecy statutes as they affect patent applications. I might even get around to translating it from French into English if I get the time, but one thing of noticeable importance is the bit on inventors. There is, so states the circular, "no obligation to first file the patent application via France just because one of the inventors is French, or has his place of residence in France" (this was indeed the interpretation of the law given by many a practitioner until now). However, before you all go off telling yourselves that there is no longer any need to worry, one should read on : "the fact that an inventor carries out research or studies on behalf of a foreign entity, where those activities may conflict with the fundamental interests of the nation, may expose the inventor to the sanctions foreseen by the New Penal Code". Additionally, and as mentioned elsewhere in the circular, all of those involved in the transmission of information deemed to affect the fundamental interests of the nation, and particularly those of the MoD, are tarred with the same brush as the initial divulger.

Well, now that's much clearer for everyone isn't it ? So get your cloak on, mate, fasten your dagger, we've got dirty work to do...but pssst, leave that chip at home.