Industrial Property Law

An applicant who has failed to comply with a deadline set by the INPI may lodge an appeal for restoration of his or her rights if he or she can show a legitimate excuse and if the failure to comply has as its direct consequence the rejection of the patent application or of a request,or the forfeiture of the patent application or the loss of any other right (Art. L. 612-16 IP Code) .
An application …

Application for restoration of patent

An applicant who has failed to comply with a deadline set by the INPI may lodge an appeal for restoration of his or her rights if he or she can show a legitimate excuse and if the failure to comply has as its direct consequence the rejection of the patent application or of a request,or the forfeiture of the patent application or the loss of any other right (Art. L. 612-16 IP Code) .

An application for restoration must be submitted in writing by the applicant (art. R. 613-52 IP Code) , to the director general of the INPI within two months from the termination of the impediment constituting the legitimate cause . The unperformed acts must be performed within this time-limit (Article L. 612-16, al. 2, IP Code). The impediment is assessed with regard to the person of the petitioner in the patent restoration claim  and may be constituted in particular as a result of the omission of an agent .

Application may only be lodged within one year of the expiry of the non-observed time-limit (Article L. 612-16, paragraph 2, IP Code). In the event of non-payment of a maintenance fee, the unobserved time-limit refers to the grace period provided for in the second paragraph of Article L. 612-19 of the Intellectual Property Code (Art. L. 612-16, al. 3, IP Code). The one-year period for making an application for restoration of rights to present a motion for continuation of the procedure runs from the expiry of the two-month time-limit within which the motion for continuation of the procedure is required to be lodged . This solution, set out by the Court of Cassation in a ruling dated 1 December 2021, represents a reversal of its previous position, according to which failure to comply with the time-limit for filing a motion to continue proceedings could not have the effect of extending the time-limit by one year and ran from the deadline by which the act originally omitted had to be completed .

Where the application relates to non-payment of a maintenance fee, restoration is granted by the INPI director general only on condition that the maintenance fees due on the date of restoration have been paid within three months from entry of the decision in the National Register of Patents (Art. L. 612-16, para. 3, and R. 613-50, para. 3, IP Code).

In the event of non-conformity of the application, INPI notifies the applicant, giving reasons and granting a time-limit to correct it or contest the INPI's objections. If the applicant fails to rectify the situation or to make any observations which would enable the objection to be removed, the INPI rejects the application. The notification may be accompanied by a proposal for regularization, which is deemed accepted if the applicant does not contest it within the time-limit set. The INPI director general gives reasons for his decision and notifies the applicant (Article R. 613-52 IP Code).

The INPI's director general must rule on the application for restoration within a time-limit of six months from the date of filing. Notification of non-conformity suspends this time-limit until the appeal is rectified or the objection withdrawn (Art. R. 613-52-1 IP Code). In the absence of an express ruling by the INPI within the time-limit, the application is deemed to have been accepted (Article R. 613-52-2 IP Code).

Restoration reinstates the applicant's rights retroactively. When an application for restoration is made following a ruling that a patent application is inadmissible for lack of documentation, the rights of the applicant are restored as of the date of regularization of the patent application, and not as of the date of the initial patent application .

Cass. com. 24 September 2003, LawLex202200001572JBJ.

Cass. com. 4 February 1997, LawLex202200001573JBJ, which precludes the admissibility of an application for restoration by an undertaking which has not justified its standing to bring an action within the time-limit.

See CA Paris, 15 January 2014, LawLex202300000350JBJ.

Cass. com. 18 February 1986, LawLex202200001571JBJ; CA Paris, 25 April 2017, LawLex202300000352JBJ.

Cass. com, 24 September 2003, LawLex202200001572JBJ; Cass. com, 18 February 1986, LawLex202200001571JBJ.

Cass. com. 1 December 2021, LawLex202200001570JBJ.

Cass. com. 15 April 1986, LawLex202200001576JBJ.

Cass. com. 24th September 2003, LawLex202200001572JB

Industrial Property Law

294. Application for restoration of patent

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294. Application for restoration of patent

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise