Chapter 9: International Protection of US. Patents

Prior to beginning a brief discussion of the means through which one may protect a patent internationally, it is worth noting that there is no such thing as an international patent, and that recognition of any country’s patents is as a general rule limited only to the country of origin. In other words, obtaining a patent in the U.S. protects an inventor from infringement of her patent only in the U.S. Absent a specific trade agreement or treaty to the contrary, a U.S. citizen is generally unable to enforce his U.S. patent in the courts of other countries, which effectively leaves an individual without recourse when a patent is infringed in most countries around the world. The U.S. government can prevent any goods or services produced outside of the U.S. that infringe on a U.S. patent from being imported into the U.S., but that is of little comfort to a U.S. inventor whose idea is being exploited by others outside of the territorial boundaries of the U.S. without credit or compensation.

To make matters worse, part of the patent application process requires the inventor to fully disclose how an invention works and how to build it as a precondition to the granting of a patent. Once the patent is granted, anyone within or outside of the U.S. can generally obtain access to the patent and copy the invention. The only sure way to insulate oneself against that happening is to file for patent protection in as many foreign countries as possible, and then sue individuals who infringe on the patent in each foreign country in which a patent has been obtained and the infringement occurs. Needless to say, this can be a prohibitively expensive and time-consuming process. And there is no guarantee that a foreign jurisdiction will grant patent protection simply because a patent has been granted in the U.S. as the idea may not meet the requirements for patentability in the foreign nation, or there may be prior claims by others to the invention that is the subject of the patent application. Arguably, one unintended consequence of the wealth of online resources made available by the USPTO is that it has made it easier than ever for unscrupulous individuals to misappropriate U.S. patents. And of course, the same holds true for any other country which similarly widely disseminates information about their own citizens’ current patents.