Patents are of National Origin

by Ladas & Parry LLP
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Patents are Obtained Country by Country

All intellectual property professionals are aware that patents are issued, as a general rule, country by country. However, some inventors are under the misimpression that once they obtain a patent in their home country, they have protection for their invention around the world. This is not the case. Generally speaking, each country issues its own patents, and that patent affords protection only in the country where it is issued.

Exceptions

Most general rules have exceptions, and that is the case here. One exception occurs where a group of countries has agreed to designate a single patent office to examine a patent application for patentability. Once that office has determined that the application is worthy of a patent, all countries of the group will accept that patent as their own. From a commercial standpoint, probably the most important group of countries which fall into this category, is the sixteen European states which have banded together to honor a patent granted by the European Patent Office. A second exception occurs for those few countries that will accept the patent of another country as their own upon application for such action. It should be borne in mind that countries which will honor other country’s patents in this way are few in number and they are often not countries in which patent applications are commonly filed.

Burden of Foreign Filings

The inventor then must consider in what other countries he or she is interested in obtaining patent protection. In virtually every country, there is a deadline for making this decision and taking action thereon to secure patent protection. As explained in greater detail in Patent Perspectives, a majority of countries require that the invention not be known to the public prior to filing for patent protection. This requirement can create a financial burden for the inventor in having to file in all countries where he or she hopes to have patent protection prior to publicly disclosing the invention as it is often very difficult to exploit an invention without making it public at the same time.

Deadlines versus Finances

Filing for patent protection in foreign countries is a decision usually driven by finances. If a party cannot market or otherwise exploit their innovations, they may not have the finances to file for patent protection outside of their home country. An inventor who has kept his or her invention secret prior to filing for patent protection in the United States, for example, must be concerned about these deadlines even secrecy is maintained through the time the U.S. patent grants. The decision to file foreign applications must still occur before the grant of the U.S. patent, since upon grant, the invention is no longer secret. In many countries outside the United States, a patent application is published eighteen months after its effective filing date. In that situation, the inventor has even less time to decide about filing foreign patent applications.

Beating the Deadlines

As it turns out, there are two treaties which many of the countries around the world have ratified which help to ameliorate this situation. These treaties are the Paris Convention and the Patent Cooperation Treaty (PCT). Both treaties are discussed in the section entitled “Protecting Inventions Internationally.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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