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Should I Seek A Foreign Patent? Legal Factors

As mentioned in my last blog, many businesses are unaware of the need and/or are unfamiliar with the procedures to extend patent rights outside the United States.  This article describes some legal factors one may consider when making the important decision to file for patent protection in foreign countries.

Legal Factors

Before initiating a time consuming and expensive patent application process in a foreign country, the inventor should become familiar with the strengths, shortcomings, and pertinent peculiarities of that country’s patent system.

A good first step is to ascertain if the owner’s invention constitutes patentable material at all in the target jurisdiction.  Although certain material may be patent eligible in the United States, that same material may not be patentable overseas.  For example, some countries do not allow patents for business methods, software, and/or certain biotechnology.

Next, a patent is not of much value if the inventor cannot reasonably expect to enforce those rights against others who would copy the inventor’s technology in the foreign country.  The patent law in the foreign jurisdiction should clearly and sufficiently define infringement, as well as contain provisions for remedies available to a plaintiff inventor including injunction and damages.  Also, the competence, capacity, and power of the judicial system tasked with hearing infringement cases should be taken into account.

Also, the inventor should look beyond patents, and into the target country’s regulation of a given field of technology.  Certain products, such as pharmaceuticals, agricultural chemicals, and telephonic equipment, may require foreign government approval before they may be marketed.  Other products are subject to price controls by the foreign government.

More next time on invention factors to consider when deciding to file for foreign patent protection.

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