The Path to Worldwide Patent Rights

“The Unitary Patent will be quite appealing for many innovators, particularly those who require numerous patents in numerous countries to adequately cover the underlying innovation…. But putting all of your eggs into a single basket is not a particularly useful solution for innovators who rely on a single or a few patents.” better or for worse, there is no such thing as a worldwide patent. Generally speaking, patent rights need to be obtained in individual countries, although there are notable global filing strategies that can be used to effectively lock in the possibility of obtaining patent protection across the globe or region. But there is no way around it—obtaining worldwide patent protection is expensive. In fact, obtaining worldwide patent rights is typically cost prohibitive.

Even if the innovation represents a significant standard essential breakthrough, obtaining protection across the world will be cost prohibitive. This is because tens of thousands, or even hundreds of thousands of patents, relate to standards and these patents are many times of incremental or even minimal value in and of themselves. Only in the rare situation where a small number of patents, or even a single patent, effectively covers the innovation, as is the case with a pharmaceutical, does one even really consider obtaining protection that begins to approximate worldwide protection.

But how do you set out on a path toward worldwide patent protection? This article explores three separate pathways which will leave open the opportunity to obtain worldwide patent rights should that be desirable.

Innovators Love Paris for a Date

Usually, when an innovator seeks to obtain a patent, the choice is made to file an application in the country of origin. As a result of the Paris Convention for the Protection of Industrial Property, which was first adopted in 1883, a patent application filed in virtually any country will establish a right of priority in any and every other country that is a signatory to the Paris Convention. Currently, there are 180 countries that are signatories to the Paris Convention, which makes it one of the most widely adopted treaties in the world.

The right of priority provided by the Paris Convention means that, for example, a patent application filed in the United States can be used to establish a right of priority in any (or all) of the other 179 countries that are signatories to the Paris Convention. What that means is if you file a patent application in the United States on May 7, 2024, you have one year within which to file a patent application in any other signatory member of the Paris Convention and still be entitled to the priority filing date of May 7, 2024. This is extremely helpful, and powerful. As of your filing date, the universe of prior art that can be applied to your application is locked.

Nothing can be prior art to the invention defined in a filing if it does not exist until after the filing date; that is what it means to be prior art. Prior art must be from prior to the filing date. Because of the Paris Convention, the applicant can rely on the filing date of an earlier filed application in another country even though an application is filed after. For example, ACME files a patent application in the United States on April 15, 2024. A publication fully describes the invention on May 15, 2024. If an application is filed in Ireland on June 15, 2024, ACME can take priority to the U.S. application and effectively remove the publication as prior art. So, under the Paris Convention, an applicant has 12 months within which to file virtually anywhere in the world and be entitled to the earlier filing date.

And, as the result of the Patent Law Treaty (PLT), if a mistake is made that results in a priority claim not being made within 12 months, an extra two-month grace period is available, although entitlement to the extra two months is expensive and not nearly as universal as the underlying Paris Convention. The PLT currently has been ratified by 43 members worldwide.

What this all means is the groundwork for worldwide patent rights can be established by a single patent application being filed in any one of 180 countries that are signatories to the Paris Convention. File in any one of the Paris countries and you are on a path that could lead to rights in any or all of those countries, and you do not need to make another filing anywhere in the world for up to 12 months. As the deadline for the Paris year approaches, decisions need to be made about where to file to ultimately seek patent rights.

More Time than Paris

There is another procedural path that can be followed by innovators on the road to worldwide patent rights. Since 1970, the Patent Cooperation Treaty (PCT) has authorized the filing of this single international patent application, which is treated the same as a domestic application in each of the 157 member countries that have ratified the PCT.

The PCT offers an alternative route to filing patent applications directly in the patent offices of those 157 member states. More specifically, the Patent Cooperation Treaty (PCT) enables an applicant to file in a standardized format and have that application acknowledged as a regular national or regional filing in all Contracting States to the PCT as of that filing date (i.e., filing of an international application will constitute automatic designation all contracting countries to the PCT). In the same manner, the PCT enables foreign applicants to file an international application, designating the U.S., in their home language in their home patent office and have the application acknowledged as a regular U.S. national filing.

The filing of a PCT application (also called an international application) begins what is known as the international phase. The international phase is the common phase among all 157 member countries. Ultimately, to obtain a patent it will be necessary to enter the national stage, which must ordinarily be commenced by the expiration of 30 months from the priority date (a different timeline currently applies for only Luxemburg and Tanzania).

The priority date, which defines by when an international application must enter the national stage, relates to the first filing for which priority is claimed. It is possible for that priority date to be the same date that the PCT application was filed, or it could be an earlier date if a domestic application was filed first and then the PCT application was filed subsequently. Like any other application, a PCT application can be filed claiming an earlier date of priority up to 12 months early. Thus, in most instances, a national U.S. application is filed first and then, if desired, a PCT application is filed at or before the on-year anniversary of the filing of the U.S. national application. In this case, the international application is filed subsequently within the priority year provided by the Paris Convention and the priority benefit of the U.S. national application filing date is claimed.

The major benefit of the international application is that it gives the applicant up to 30 months to decide where around the world patent protection should ultimately be sought. This length of time is frequently quite beneficial because the technical viability and marketability of the innovation may not be well enough established after only the 12-months provided by the Paris Convention to know whether it is worthwhile to seek protection in multiple countries, regionally, or across the globe. Often, by 30 months after the earliest filing date it has become clear, or at least clearer, whether the innovation is marketable or even technically feasible, and where protection is most desirable.

The PCT process is, however, not without its critics, and it can be quite expensive.

Europe and the Unitary Patent

After much teasing, multiple false starts, and many broken hearts, in 2023 Europe finally delivered on the promise of a pan-European patent, more or less. Indeed, the advent of the unitary patent (UP) in Europe has made it much more economical to obtain patent protection across many countries in the EU—17 currently but eventually as many as 25 of the 27 EU member states (Spain and Croatia will not participate).

The Unitary Patent will be examined and administered by the European Patent Office (EPO). Applicants will file a European patent application, which will be searched and examined as per usual. On grant, applicants will be able to choose the Unitary Patent option. Unitary patents will be treated as a single patent no longer requiring validation, will lead to massive savings in terms of time and costs. These patents will co-exist across the European continent with domestic patents obtained directly in the member countries. The unitary patent will, however, be enforceable before the Unified Patent Court (UPC).

The UP will be quite appealing for many innovators, particularly those who require numerous patents in numerous countries to adequately cover the underlying innovation. In that situation, the cost saving and streamlining will be substantial. But disputes relating to a unitary patent are resolved in the UPC, which subjects all of the rights obtained through the unitary patent in all countries to be subject to a single challenge in a single court. Putting all of your eggs into a single basket is not a particularly useful solution for innovators who rely on a single patent or a few patents to cover their innovations. The potential loss of all patent rights across all countries in a single challenge is scary, to say the least. Indeed, precisely what makes the UP and UPC attractive to some makes it unattractive to others.

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