Patent protection in aerospace & defence by Ahmad Saleh partner, head of innovation, patents & industrial property, Al Tamimi & Company UAE

Military and defence related inventions may be eligible for patent protection, subject to two main conditions:-

1. The invention itself needs to be patentable according to the various patentability conditions.

2. The approval of the Ministry of Defence must be obtained in advance to patent registration in the UAE, to the publication of the invention, and to any foreign patent filing or submission.

For any applicant who resides in the United Arab Emirates and is the owner of an invention, or a patent application, then this filing must first be done in the United Arab Emirates. It must be submitted to the Ministry of Economy, to the Patent Office of the United Arab Emirates. If that classification falls within the military and defence areas, then the Ministry of Economy will need to forward that application to the Ministry of Defence to obtain their prior approval before resuming in assessing the patentability of the invention and with the publication of the patent application at a later stage.

Subsequently Ministry of Defence will either (a) come back to the Ministry of Economy with an approval to proceed, if the Ministry of Defence feels that obtaining such a patent application and the publication of such an invention will not compromise the national security of the country, or (b) reject the approval for the submission of a patent application, and request the applicant to keep that patent application and that invention confidential for a period of time that it deems suitable. In the event that the second scenario occurs, then the applicant or the owner of the invention will have the right for fair compensation from the Minister of Defence for refraining from seeking a patent protection of such an invention.

Further to the above, an applicant cannot file for a foreign patent application in relation to an invention pertaining to the military and defence areas unless the prior approval of the UAE Ministry of Defence has been obtained.

In circumstances where the applicant does not know whether an invention might be pertaining to national security, the safest approach for them to take would be that in submitting the patent application to the UAE Patent Office, and by highlighting a possible relation to military and defence, then the UAE Patent Office would scrutinise the patent application closely, and normally they follow the International Patent Classification, or what we refer to as IPC, under the Strasbourg Agreement, to classify the invention in one or another of the different categories. The Patent Office would review the patent application, look into the subject matter and classify that patent application into one or another of these categories. And if these IPC categories relate to military and defence, then the patent application would be referred to the Ministry of Defence.

Another option would be to the applicant in this case might have the option of dividing that invention into two different inventions. One invention with an exclusive application related to military and defence and a second use which is exclusive to the civilian use outside the military, defence and national security field. However, to do so it would be advisable to consult with technical and legal consultants in order to make sure that the division makes sense.