Where Americans File Foreign Patents

We recently spoke with an inventor who asked a number of questions about filing patent applications overseas. His invention was in the construction technology area. He expected that his product would sell well in a number of foreign countries, and he wanted patent protection in those markets.

However, the cost of filing a patent application in each of his anticipated foreign markets would be well over his IP budget. So, his question was, which foreign countries should he file patent applications?

Start by considering any country where the applicant will make, sell, or license the product. Although, this is a general rule that may be cost prohibitive or excessive for some inventors. With budgets and costs in mind, which countries should applicants file patent applications?

The chart below illustrates the number of patents filed by US applicants in respective countries. The red line indicates the percentage of filings by Americans in each country.

Where Americans File Foreign Patents

(https://www.wipo.int/ipstats/en)

As shown, American companies tend to file a large number patent applications in China, Japan, Canada, Australia, Brazil, and Korea. But these numbers only provide half of the answer.

The technology areas of the invention may also influence foreign filing decisions. In this regard, another metric to consider is the technology areas are most popular for fling in a foreign jurisdiction.

Where Americans File Foreign Patents

(https://www.wipo.int/ipstats/en)

Here we see that 15 percent of all applications filed in the German patent office are transport related. Nine percent of the patents filed in China are for computer technology. Korea is strong in electrical machinery, while the US and Japan receive many applications computer technology and electrical machinery.

Another consideration for an applicant is whether the applicant can enforce their patent rights in the foreign jurisdiction. Indeed, Japan, Canada, and Korea for example, offer judicial systems that are amenable to enforcing a patent as a foreigner. China and Brazil, for example, have judicial systems that are less predictable for foreign litigants enforcing their patent rights.

Many decisions on where to file a patent application overseas are the result of a business interest in the region. Thus, the decision of where to file may be divorced from the intellectual property considerations and made as a business decision.

In sum, when considering where to file a patent application, one should first consider where the product will be made or sold. Then look to the countries that receive the most foreign

patent applications in the technology areas of your invention, and consider filing there. Finally, consider business interests in the region to help make a better decision.

Regardless, your patent attorney should have experience guiding an applicant through the domestic and foreign application process. Best of luck with your patent applications!