2014/11 > The newly adopted principle in France whereby « administrative silence means acceptance»: how does it apply to IP?

Adopted under a government program aimed at simplifying administrative standards and procedures, French law n° 2013/1005 of November 12th 2013 set out under its article 21-I that “a lack of response on the administration’s part will, after two months, be considered as implicit acceptance” and not as rejection or refusal. The law was scheduled to come into force on November 12th, 2014.

However, under this same article, article 21-II, the law stipulated that this newly adopted principle can be set aside, or its term amended, depending on the nature of the decision in question or for reasons relating to the administration of justice. These derogations can result only from official decrees which can provide for exceptions or set time periods different from the two months specified in the law, on the basis of the urgency or the complexity of the procedure.

Two such decrees concerning intellectual property were published on 1st November 2014. They define several exceptions to the principle set out in the primary law. These exceptions allow, depending on the purpose of the request before the INPI (French Industrial Property Office), either the upholding of the old principle whereby “silence means rejection”, or the amending of the duration of the time period after which silence means acceptance.

Decree n° 2014-1280 of 23rd October 2014 relates to exceptions to the principle of tacit acceptance. The decree specifies that silence on the part of the administration will continue to mean rejection for the requests listed in the decree, depending on the purpose of these requests. The term after which the decision to reject will be valid is also specified. Thus a rejection by the INPI will be effective after four months in the case of a decision to refuse the grant of a patent, after six months in the case of a rejection of the registration or renewal of a brand or model, or a rejection of an opposition.

On the other hand, decree n° 2014-1281 of 23rd of October 2014 (corrected), defines certain requests for which the principle of tacit acceptance does apply but after a time period different from the original term of two months. This is notably the case for acts aimed at modifying property rights relating to industrial property, which must be recorded on the National Register.

Moreover, each government Ministry has published its respective implementation decree in the Official Journal of 1st November 2014. Some of the provisions included in these decrees also have consequences in the field of intellectual property. Hence, acts relating to biocide products (text n° 10), and acts relating to the digital exploitation of ‘unavailable’ books (text n° 84), are subject to tacit acceptance within a specific time frame (with the exception of the act of registration in the relevant official register (text n° 83), which continues to be subject to the principle whereby administrative silence is equivalent to rejection/refusal). The type II variation authorization for the authorization to market medicinal products for human use, regulated by article R. 121-41-5 of the public health code, is also not subject to be principle of tacit acceptance (text n° 55).

Thankfully however, no change is made to the authorisation procedure whereby the authorities for National Defence authorize free (non-confidential) exploitation of an invention that is the object of a patent application or plant variety certificate (text n° 52).

The abovementioned decrees apply to applications submitted from 12th November 2014 onwards.

In practice, at the present time it is difficult to evaluate what their impact will be in the field of intellectual property.

In any event, although it is not stated expressly, it seems that these time periods and exceptions will in fact apply in cases where the Office issues a decision of acceptance or rejection, or a notification, that is challenged, without this challenge later being the object of an express decision by the Office, or in cases where a right-holder makes a request, for registration for example, without receiving a response from the INPI.

Once the specified term expires then, depending on the case in question, this silence will represent an acceptance or rejection of the initial request. This tacit decision may, of course, where appropriate, be subject to appeal before the competent authority. However, the responsibility of properly monitoring the appeal period after which the decision can be challenged lies with the applicant.

It is important to note that thus, in the future, the INPI will no longer be required to decide on notifications issued by its offices, which are disputed by applicants or their representatives, even in relation to files which today may be pending, and have been awaiting final decisions of the Office for several years.