Patently Strategic - Patent Strategy for Startups
Patently Strategic - Patent Strategy for Startups
License to File: Foreign Filing License Risks and Strategies
Foreign filing licenses – surprisingly sneaky and easy to overlook, but can come with significant consequences if you do. Many countries, including the US, require inventors to receive special permission to file with patent offices outside of the inventor’s …or invention’s… country. A foreign filing license is a government issued document that represents this permission for inventors and companies to file in foreign countries. Failing to receive this permission can come with serious ramifications including fines, patent revocation, and even imprisonment!
Why so serious? Well, like with most matters of foreign export compliance, it comes down to each nation’s strong desire to protect its own security and economic interests. Allowing ideas to cross borders comes with the risk of the unauthorized exportation of technologies and sensitive information that could have implications for military applications, national security, and state secrets.
In this month’s episode, we're bringing you along for a tale of international mystery and intrigue and into the clandestine world of foreign filing licenses. Ty Davis, Patent Strategy Associate at Aurora, along with our all star patent panel, discusses:
⦿ The three main categories of filing license requirements
⦿ Strategies for data collection and how to navigate potential conflicts
⦿ And some example walkthroughs of international filing conflicts and their resolutions
Ty is joined by our always exceptional group of IP experts, including:
⦿ Ashley Sloat, President and Director of Patent Strategy at Aurora
⦿ Kristen Hansen, Patent Strategist at Aurora
⦿ David Jackrel, President of Jackrel Consulting
** Aurora is Hiring! **
Join us in the trenches and on this podcast! Aurora is looking for a part-time Biotech Patent Agent to help with patent portfolio management, application drafting, prosecution, and strategy. This is a salaried, fully remote position with a flexible work week and benefits. Work where you want, when you want, with a great team, on engaging subject matter, and even get the opportunity to be heard on this Podcast and featured on IPWatchdog! Learn more and apply at https://www.aurorapatents.com/careers.html.
** Resources **
⦿ Show Notes: https://www.aurorapatents.com/blog/license-to-file
⦿ Slides: https://www.aurorapatents.com/uploads/9/8/1/1/98119826/foreignfilinglicenses.pdf
⦿ FFL Table: https://www.aurorapatents.com/foreign-filing-license-requirements.html
⦿ Apply: https://www.aurorapatents.com/careers.html
** Follow Aurora Consulting **
⦿ Home: https://www.aurorapatents.com/
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⦿ Instagram: https://www.instagram.com/aurorapatents/
And as
WEBVTT
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Good day, and welcome to the Patently Strategic Podcast, where we discuss all things
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at the intersection of business, technology, and patents. This podcast
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is a monthly discussion amongst experts in the field of patenting it's for inventors,
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founders, and IP professionals alike, established or aspiring.
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In today's episode, we're bringing you along for a tale of international mystery
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and intrigue and into of the clandestine world of foreign filing licenses.
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This is another topic that falls squarely into the domain of patenting
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sharp corners, surprisingly sneaky and easy to overlook, but can
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come with significant consequences if you do. Many countries,
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including the US. Require inventors to receive special permission to file
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with patent offices outside of the inventors or inventions country.
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A foreign filing license is a government issued document that represents
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this permission for inventors and companies to file in foreign countries. Failing to
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receive this permission can come with some pretty serious ramifications,
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including fines, patent revocation, and even imprisonment.
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That's right, imprisonment. Why so serious? Well, like with
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most matters of foreign export, compliance comes down to each nation's
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strong desire to protect its own security and economic interests.
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Allowing ideas to cross borders comes with the risk of the unauthorized exportation
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of technologies, and sensitive information could have implications for military
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applications, national security, and even state secrets.
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But whether it's a grip for a golf club or a new gadget worthy of
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a sinister Bond villain laugh, there are oftentimes no technology category exceptions
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for many countries with foreign filing license requirements. All patent applications
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destined for international travel, whether utility, plant, or design,
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must all receive a foreign filing license before being
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filed abroad. According to our research, there are at least 35
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countries with foreign filing requirements, and according to WIPO, this includes
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30 of the Patent Cooperation Treaty participants. It's hard
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to imagine an international strategy that would not be impacted, with notables on
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the list that includes the likes of the US. China, India,
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Germany, and the UK. Further complicating all of this is the
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strong potential for jurisdictional conflicts. Requirements for filing
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licenses can vary significantly from country to country and may even
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conflict in some cases. Some countries base their requirements on
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inventor or applicant citizenship, residency, or place of business.
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Other countries are more concerned with the location of the inventive activity.
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Many of these countries require inventions to be filed first with their respective
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patent offices. But what if inventors reside in multiple jurisdictions,
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each with first file requirements? An idea co conceived
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in the US. And India on a teleconference is now subject to
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two competing foreign filing jurisdictions. With a rise in distributed
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workforces teleconferencing and outsourcing, both inventors and inventive
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steps will more and more frequently be residing and occurring across legal
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boundaries. The lines of innovation are rapidly blurring, but the patent laws of
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each country must still be obeyed. Complicating factors that inventors
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and practitioners will need to consider and conflicts they will need to reconcile
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include things like inventor citizenships and residencies, locations of the
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business entities, each jurisdiction where inventive activity occurs,
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and potential inventive sensitivities, including implications for military applications,
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national security, and state secrets. And while this plot may seem
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sinister and perilous, you need not be shaken or stirred. In this month's
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episode, Aurora's newest O patent agent and first time
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patently strategic guest host Ty Davis leads a discussion along with
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our all star patent panel, breaking down the three main categories
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of filing license requirements, strategies for data collection and
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how to navigate potential conflicts, and some example, walkthroughs of
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international filing conflicts and their resolutions. The group also discusses
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some very practical tips for practitioners and businesses to consider in their foreign filing
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strategies. And no good spy tail would be complete without some cool gadgets and gizmos,
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but we've had the Q division of Aurora working on a table that visually outlines
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the research we've done on the countries you'll need to consider. We'll be including
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a link to the PDF in the show. Notes. Ty is joined today by our
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always exceptional group of IP experts, including Dr.
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Ashley Slote, president and Director of Patent Strategy at Aurora,
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kristen Hansen, patent strategist at Aurora and Dr. David Jackrell,
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president of Jackrill Consulting. All right, take it away,
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Ty.
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All right, well, cool. We'll jump into foreign
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filing. Yeah, definitely spent
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some time researching this.
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It took a little while to kind of formulate into a presentation.
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But what I was kind of thinking about doing was talking
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about foreign filing licenses, why we care first off.
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And then types of countries with respect to foreign filing
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licenses start developing a
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strategy for what data we need to
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kind of formulate what our plan will be as practitioners
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and then some potential conflicts of
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that data and then run through. I put two examples
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that are kind of interesting and kind of wrap a lot of things together and
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then summarize as kind of through the practitioner
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lens what the takeaways would be, and then
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maybe a little bit on the business side lends what
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the takeaways would be. So without further
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ado, foreign filing licenses. So,
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as we all know, some countries have foreign filing license
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requirements. Applications can be made in other
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countries. And one interesting note that I
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found on the World Intellectual Property Office website
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was a statement that they made, which is, in most
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cases, you are considered to have
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permission to file with another patent office. If you either have filed
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an application for the same invention at the relevant
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national patent Office a certain time of amount of
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time previously which varies from patent office to patent office and
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have not received a security notice stating that you should not
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file elsewhere or if you have explicitly requested and
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had been granted permission. So this sounds very
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familiar to us. This aligns pretty well with the USPTO.
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Procedure, but it's in most cases.
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So with respect to foreign
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filing licenses, I kind of boiled this
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down to three types of countries with
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two subcategories. The first type, which would be
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countries without any foreign filing license requirements,
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notably Japan, Hong Kong, Mexico,
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South Africa, Switzerland, Thailand, these countries,
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this is going to be your easiest case scenario.
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And then you have your second type of country with foreign filing
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license requirements based on inventor, citizenship,
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residency, or in some countries, applicant citizenship
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residency or place of business when your applicant
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is perhaps a business entity,
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notably this would be Belgium,
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India, Israel, Italy, United Kingdom
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are among that group of countries.
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And then the third type, which we're going to be the most familiar with,
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are countries with foreign filing license requirements based
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on the location of the inventive activity,
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including the United States. Notably, you have China,
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Germany, Russia, Spain being among
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that group as well. And then getting
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a little bit deeper is two subcategories,
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which would be both the second and third types, but with
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the added limitation that the invention pertains to either
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national security, state secrets, and or
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military applications, which we'll have
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that kind of wrapped up in one of the examples.
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And so in my opinion, what kind
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of covers the data mining
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side for the practitioner would be the three questions
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who, where, and what?
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When we asked the question, who we're looking for the
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inventor or group of inventors,
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citizenship, residency,
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as far as the applicant, once again,
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citizenship, residency, maybe location of business,
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start putting these things together, especially in regards to that second
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category of countries.
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We then look at where the inventive activity occurred.
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And this one can get a little bit sticky when you
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start considering that inventive invention
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concepts can have portions that actually occur in different
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locations. And I added a little note there that when
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you start thinking about the increased use of teleconferences
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remote collaborations, you can have some added complexities
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there. So you're spitballing with an
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engineer in India or something, and he comes up with a
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portion, and you come up with a portion. You are now subject
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to two countries foreign filing jurisdictions.
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And then finally, to wrap in those
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two subcategories, we want to identify what has
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been invented if that relates to military application,
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national security, or state secret.
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And just do a little added note here. When it
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when it comes to some of the more serious ramifications of
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improper foreign filing license procedures,
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this is where one can get in a real bind.
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If you knowingly
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or willfully divulge this
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information, that's where fines,
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patent revocation, or even imprisonment can
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factor in. So it's a good one to
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keep in mind in your research tie then.
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Yeah, I don't know what you found or didn't find, but if
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in theory, let's say it's a
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fancy new chair, right, clearly not a military application,
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clearly not like a recliner, right? Clearly not national
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security, clearly not a state secret in your research then,
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is it? If an
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inventor is not going to be fined for that? Or is there still
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those implications even when you're outside of
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these areas?
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Yeah, I guess if you're dealing with a
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subcategory where
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it is only within the jurisdiction when it's a military application
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or national security, I would think that you're
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outside of that in other I
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mean, you look at China or the US. Or whatever,
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if you're not going through the actual steps of receiving
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that foreign filing license, you can still get in a bind even on something
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like that. That makes sense.
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I hope that answers your question there. Well, it sounds like fine and things like
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that is still likely or could be levied,
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but pie maybe imprisonment would be maybe overkill for yeah.
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And really, the only places that
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I seem to see that was, like I said,
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when you
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have material that's pursuant to a secrecy order or
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something and you knowingly and willfully divulge
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those secrets, that's where the imprisonment
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seems to be brought up. Yeah, I think
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the imprisonment, but even if it isn't willingly
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and purposefully divulged, you can still receive
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fines and receive a block of a patent on those.
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The way I look at this topic in general, it's just good to get it
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right no matter what you're doing, no matter what country. And the
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way you do that is, first of all, you have to realize,
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okay, I'm not filing US. Only where else am
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I filing? Where are my inventors from citizenship wise, residence wise,
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and apply all those facts and then look it
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up every time without fail?
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Even if I know France needs a foreign filing license, if it's
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an inventor that lives in France and is a resident
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of France, even though I know that in my head every single
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time I look it up because it might have changed, I want to get it
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right. I want to best protect the client. And so I look it up every
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time, right? Yeah. I think awareness is
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part of it. And then to add to that
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something I've seen over and over in every blog that I read was
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you can figure all these things out, but at the end of the
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day, it's always best to refer to an associate
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that is a local and knows the ins and outs.
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I know from just personal kind of experience, india can be
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very problematic. You have inventors who are
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Indian citizens.
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Is there best practices or
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things to watch out for? And you have
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those categories. So India is in that second category.
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So if you know you have inventors in whatever category,
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is there some kind of a sheet that you can give to us
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for that? Well, that's what I was in the
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table that I was building was kind of trying to formulate a
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cheat sheet. And as you bring up,
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India is kind of interesting.
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Their cut off would be whether or not you are
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a tax resident of India, which is if you live there
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for 183 days out of the year,
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there's a little bit. Interesting enough, I actually have that
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as one of the examples. So we'll dive a little bit deeper into that.
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I think the only other thing I learned recently about India, which is like
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this, is just making sure you always make sure your inventors,
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you maintain a good relationship with them, but you
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need a poverty from every single inventor
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to do a foreign filing license request,
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even if you have an applicant. So if you've
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burned the bridges with half of your engineering team and aren't going to say anything,
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you might be kind of sol a little bit interesting.
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Fun fact, don't take people off in general.
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Yeah. And I can't remember if that applies to more than India or not.
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It's kind of a packet that you need to send to India to get a
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form filing license. But I can't recall if there are other countries that are
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that stringent. Right? Yeah.
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So as far as, I don't know,
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generic potential conflicts and this isn't
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exhaustive list, but I'd just say this is kind of more the more
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commonplace. You could have two or more
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inventors or applicants having different citizenship,
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residents within countries for the second category,
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two or more inventors performing inventive activity
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in two or more of the countries from the third, where we were kind of
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breaking that down. And then the last one, you could have
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even a single inventor or two or more with citizenship
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and or residency in a country from the second category,
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but conceiving the invention, or inventive portions within
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a country from the third.
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Like I said, there are others, but I would say these are the more
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common. So looking at an
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example of this, our first example,
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say we had a US company has an
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in person workshop at their US based headquarters.
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As part two company employees attend.
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Employee A is a Chinese resident working for
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a Chinese branch of the company who's at the in person workshop.
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And then you have employee B,
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David, which for five months of the year is in the US.
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But then returns to his family in India for seven months of
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the year during the workshop, the two employees
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in a manufacturing process that greatly increases the efficiency
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of the company's manufacturing. As such,
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the company wants to pursue intellectual
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property development on this. So what
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conflicts could we have here?
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Just jumping right into it. The Chinese foreign filing
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jurisdiction is not invoked, being that China
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is of the third category, like the US. So they only care where
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the inventive activity occurred, since other than the US.
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China is not involved. But where we run into
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the conflict is, yes, we have inventive activity in the
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US. And on the Indian foreign filing
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jurisdiction, employee B is technically a tax resident of
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India. So now we have two conflicting
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foreign filing jurisdictions. Nice enough for
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us. The USPTO. And the IPO are
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pretty they allow you to obtain
18:17.270 --> 18:21.114
a foreign filing license without first filing
18:21.162 --> 18:25.230
an application. So that gives us two options there. First option,
18:25.380 --> 18:28.714
file requisite documents with the Indian Patent
18:28.762 --> 18:32.286
Office, wait for permission, typically within three weeks,
18:32.388 --> 18:35.906
and then you could file at the USPTO. Or you could do the inverse of
18:35.928 --> 18:39.586
that, where you file the requisite documents with the USPTO. Wait for
18:39.608 --> 18:43.326
permission. Maybe the deciding factor
18:43.358 --> 18:46.758
here is it does seem like the timeline as far as
18:46.924 --> 18:50.246
going through on the second option could be
18:50.268 --> 18:53.618
faster. Typically within three days of the receipt
18:53.634 --> 18:57.640
of the expedited petition, you're going to have that
18:58.730 --> 19:02.280
NFL. It is faster. It usually takes about a week.
19:04.170 --> 19:07.354
If you do it Friday, the prior week, it will probably take about a week.
19:07.392 --> 19:09.660
If you do it Wednesday, it might take a couple of days.
19:10.190 --> 19:13.360
I don't know why just the US Patent Office is weird that way.
19:14.610 --> 19:18.142
But the first option, note that three weeks is less
19:18.196 --> 19:21.866
likely. That's best case, when I have requested
19:21.898 --> 19:25.374
this in and around Indian holidays or in
19:25.412 --> 19:29.310
and around busier times for the IPO,
19:29.670 --> 19:32.578
it can take up to six weeks. So just be aware that you might want
19:32.584 --> 19:36.194
to do this earlier. And the
19:36.232 --> 19:41.718
problem with doing it a little earlier is India actually asks for a
19:41.724 --> 19:45.702
good chunk of the document to be done. And so you're kind of submitting maybe
19:45.756 --> 19:49.174
some claims, maybe some description. So that's kind of
19:49.212 --> 19:52.954
hard. You can't really get out of the invention, call and send
19:52.992 --> 19:56.380
off a paragraph to India. They want a little bit more than that.
19:57.070 --> 20:00.646
That being said, I've done it with just a paragraph in a claim, and I've
20:00.678 --> 20:03.900
gotten the form filing license. But you could get pushed back,
20:04.210 --> 20:07.600
and they want more. They don't know what it's about.
20:08.290 --> 20:11.200
Got you. Yeah. Thank you for that.
20:11.650 --> 20:15.314
When you're saying file requisite documents, you're saying,
20:15.432 --> 20:19.842
file a foreign filing license request right,
20:19.896 --> 20:22.946
in the documents. And so and you have
20:22.968 --> 20:26.802
to wait for the permission before you file the application in any in either
20:26.856 --> 20:30.322
country, right? Yes. Yeah. And as Kristen said,
20:30.376 --> 20:34.578
you know, you do you have to have a pretty much full disclosure
20:34.754 --> 20:38.390
of the invention in those requisite documents.
20:39.290 --> 20:42.282
Your target one, you could file directly into India, though, right?
20:42.336 --> 20:45.386
Like, you wouldn't have to do the foreign filing in advance. Right. You could just
20:45.408 --> 20:48.906
say, oh, we want to file first in India. You can. You just need a
20:48.928 --> 20:50.640
foreign filing from the US.
20:53.570 --> 20:57.066
But you can't file it in this case because it's weird and there's
20:57.098 --> 21:00.618
these conflicting jurisdictions. You can't file
21:00.634 --> 21:04.078
in India first before you have a foreign filing license from
21:04.084 --> 21:07.940
the US. Right? That's correct.
21:08.790 --> 21:12.354
Either way, you need to get that NFL from the
21:12.392 --> 21:15.940
country that you're not filing in first. Right.
21:17.850 --> 21:21.478
Since this one's India and US, you could get away with just filing a
21:21.484 --> 21:25.270
Pct instead. Like, India is part of the Pct.
21:26.970 --> 21:30.582
That's like, worst case. Right? Because it's expensive.
21:30.646 --> 21:33.866
We don't always want to do that, especially if it's going to
21:33.888 --> 21:38.538
be a provisional first with
21:38.544 --> 21:42.320
the Pct. You would still have to get
21:42.850 --> 21:47.070
the NFL from India, but would find the Pct satisfy
21:47.410 --> 21:51.200
the US. If you did with your US receiving Office, is it the US company?
21:52.130 --> 21:55.618
I would believe it would be almost the
21:55.624 --> 21:58.050
same for national or Pct.
21:58.710 --> 22:02.706
You're still going to need that. The other
22:02.808 --> 22:04.500
countries NFL first.
22:05.830 --> 22:09.398
Is India part of the Pct? They are, but I didn't think that
22:09.404 --> 22:13.462
the Pct could satisfy that, so I think
22:13.516 --> 22:16.422
it can, but I'll look it up and I'll get back to you. Yeah,
22:16.476 --> 22:19.900
that actually and I also wonder
22:20.430 --> 22:24.502
if you go Pct and then a national stage
22:24.566 --> 22:28.026
conversion versus a Pct like in the US, we often do a
22:28.048 --> 22:31.598
con from the Pct, not a national stage. So I wonder if
22:31.604 --> 22:35.760
there's different rules there as well. You mean from
22:36.530 --> 22:38.880
if an NFL was needed?
22:42.050 --> 22:46.526
I'm not sure if the Pct does satisfy
22:46.718 --> 22:49.954
or basically give you a foreign filing license for
22:49.992 --> 22:53.234
all of the countries that are Pct members, then you might
22:53.272 --> 22:57.154
be fine for a national phase application, national stage.
22:57.202 --> 23:00.918
But if you rather file a con
23:01.004 --> 23:04.738
from the Pct instead of a national phase national stage
23:04.914 --> 23:08.314
application, then maybe that's different. Maybe because
23:08.352 --> 23:11.926
it's a con rather than in the US, we often file
23:11.958 --> 23:18.426
cons rather than national stage because it's go
23:18.448 --> 23:22.042
ahead. Yeah. What this says is a license for foreign filing is not
23:22.096 --> 23:25.706
required to file an international application in the United States Receiving
23:25.738 --> 23:29.466
Office, but it may be required before the applicant or the US Receiving
23:29.498 --> 23:33.206
Office can forward a copy of the international application to a foreign
23:33.258 --> 23:36.562
patent office. So you may run into it, but it won't bar
23:36.616 --> 23:38.450
you from filing the Pct.
23:40.150 --> 23:43.826
My understanding was that honestly, not getting
23:44.008 --> 23:46.720
an NFL from any of these,
23:49.210 --> 23:52.886
I don't think it's anybody's job to verify that all the
23:52.908 --> 23:56.326
applications coming in from wherever they're coming in had
23:56.348 --> 24:00.314
an NFL from wherever they were supposed to have an NFL. But if
24:00.352 --> 24:04.940
you go to assert it against somebody,
24:05.870 --> 24:09.802
in theory they would be reviewing all of this and
24:09.856 --> 24:13.598
verifying whether you did. If you dotted all your eyes, crossed all
24:13.604 --> 24:16.654
your T's, whatever, and then saying, well,
24:16.692 --> 24:20.560
look, they never got an NFL from whatever country and they should have.
24:21.010 --> 24:25.934
And now that's a grounds for revocation of the patent. Because that
24:25.972 --> 24:29.666
was my understanding that again, it's nobody's job to sit there and say,
24:29.688 --> 24:32.946
oh, new patent applications coming in yet this one has an NFL, this one needed
24:32.968 --> 24:36.514
to want there's going to be the ask for a nationality
24:36.562 --> 24:40.274
resident. But is there really somebody at those patent offices verifying
24:40.322 --> 24:43.478
stuff? No, it just happens after the
24:43.484 --> 24:47.334
fact. If it's litigated or upheld in some
24:47.372 --> 24:51.354
other way later, you can just have it nullified, which is a
24:51.392 --> 24:55.020
problem. Yeah. Not to understand that
24:56.990 --> 25:00.606
awesome. Well, I did have a second example,
25:00.708 --> 25:04.334
which is kind of fun. In this
25:04.372 --> 25:08.510
one, we have an Israeli inventor and a Canadian inventor.
25:08.930 --> 25:11.790
The Canadian inventor working in the private sector,
25:12.310 --> 25:16.514
these two inventors invent a mousetrap and
25:16.552 --> 25:20.146
are working together via teleconference when they conceive of the
25:20.168 --> 25:23.662
invention. So we have inventive activity occurring
25:23.726 --> 25:26.070
in Israel and Canada.
25:27.530 --> 25:31.286
What sort of NFL conflicts do
25:31.308 --> 25:35.238
you think that we would have here? I can't remember where I
25:35.244 --> 25:40.494
think Israel was in the second category. I can't remember where Canada wasrael's.
25:40.562 --> 25:44.106
State secrets and stuff. Exactly. So this
25:44.128 --> 25:48.314
was kind of interesting. You would almost think you'd have conflicts, but there
25:48.352 --> 25:51.674
are none. Canadian inventor is in the private sector,
25:51.722 --> 25:55.482
not a government employee, and so not subject to Canadian
25:55.546 --> 25:59.486
NFL requirement. And then, as Kristen alluded to
25:59.588 --> 26:03.362
inventions not related to weaponry, ammunition, or subject is
26:03.416 --> 26:07.054
otherwise military value. So the Israeli NFL
26:07.102 --> 26:09.970
requirements are not invoked.
26:11.190 --> 26:17.458
It's interesting. At what point, though, do you think
26:17.544 --> 26:20.598
all the technology that NASA pumped in to
26:20.684 --> 26:24.326
the world or to the US. Based on what they were doing? I mean,
26:24.348 --> 26:27.882
not like necessarily that's not military, but you know what I mean. It was stuff
26:27.936 --> 26:31.466
that how it appeared in the normal world
26:31.568 --> 26:34.906
is not military or aeronautic or national security,
26:35.008 --> 26:38.860
but how NASA was using some of that technology clearly was.
26:39.310 --> 26:43.374
So then at what point does obviously like
26:43.412 --> 26:46.462
a typical medical device, whatever,
26:46.516 --> 26:50.490
but like a coding, let's say you create a different coding for something and it's
26:50.570 --> 26:52.800
at the time that you create it is like,
26:53.650 --> 26:57.600
clearly not like you're using it to coat stents or something like that.
26:59.030 --> 27:02.094
So you don't do an NFL because to you it's like, well, it's a coating
27:02.142 --> 27:05.426
for a stent, but then later it's like, well,
27:05.448 --> 27:09.026
this coating now covers
27:09.058 --> 27:12.498
all of our weapons and protects
27:12.514 --> 27:13.400
them from water.
27:16.650 --> 27:20.746
And you should have gotten an NFL because it's I
27:20.768 --> 27:24.326
wonder if the actual art unit
27:24.358 --> 27:27.020
that that gets placed in might dictate that later.
27:27.790 --> 27:31.534
Like if it really wasn't in an art unit that deals with
27:31.572 --> 27:35.422
weaponry and related content and it really
27:35.476 --> 27:37.840
was material science based,
27:38.450 --> 27:41.614
only maybe it's not,
27:41.812 --> 27:44.900
unless you describe it as such in your patent. Right?
27:45.670 --> 27:48.894
Yeah, I don't know. That's a great question. And Kristen,
27:49.022 --> 27:52.174
from what I've seen, only ever seen a few patents
27:52.222 --> 27:56.100
get lagged for this state
27:56.490 --> 28:00.102
military secret. Forget the
28:00.156 --> 28:04.198
words they use in the US. But it
28:04.284 --> 28:07.442
was always when that was explicitly,
28:07.506 --> 28:10.906
at least from what I've seen, was always explicitly listed as an
28:10.928 --> 28:14.890
application, as a military, a stealth technology or something
28:14.960 --> 28:18.662
like that, that was very clearly intended,
28:18.726 --> 28:21.874
I guess is a good word, to be used for those applications.
28:21.942 --> 28:26.890
So when you think about it, there's a lot of materials and textiles
28:26.970 --> 28:30.442
and all kinds of things that military are used in a military
28:30.506 --> 28:33.834
setting, but aren't necessarily like a military invention.
28:33.882 --> 28:37.714
Right. So it does seem like, at least in the US. It's relatively narrow how
28:37.752 --> 28:41.362
they apply that from what I've seen. But it's a great question.
28:41.416 --> 28:44.850
I've often wondered, too, how they how they make that decision.
28:45.750 --> 28:49.266
Yeah. Well, it makes you wonder then, from a you know, we've worked with
28:49.288 --> 28:52.942
companies that are, like, in, like, kind of drone spaces
28:53.006 --> 28:55.266
and, you know, so a lot of times when you draft, you kind of throw
28:55.298 --> 28:56.840
in the kitchen sink. Right.
28:59.630 --> 29:03.610
They're using it for water
29:03.680 --> 29:07.338
recovery of people or whatever. But it
29:07.344 --> 29:10.574
could be used for aerial reconnaissance, could be used for
29:10.612 --> 29:14.570
you. What point are you potentially
29:14.650 --> 29:17.726
putting the application into a category you don't want it
29:17.748 --> 29:21.518
into? Might be one
29:21.524 --> 29:26.910
of those if you have to ask the no or
29:26.980 --> 29:30.642
is in the other category of better
29:30.696 --> 29:33.330
to ask for forgiveness than permission.
29:35.830 --> 29:37.720
I'm not that's a good policy.
29:39.210 --> 29:43.126
No, but here it's probably not. Here do
29:43.148 --> 29:46.438
the conservative thing. But I wonder in the back end
29:46.524 --> 29:50.630
if they would ever allow you to strike through something like that in your spec
29:50.780 --> 29:53.850
in order to get it out of this conundrum.
29:54.190 --> 29:57.546
Yeah, I don't know. That's interesting. Like some kind of spec of my
29:57.568 --> 30:01.434
mental, like the strike through, because you can do in copyright
30:01.482 --> 30:04.734
with code. You can black out stuff that you want
30:04.772 --> 30:07.710
to be not copyright.
30:09.890 --> 30:13.294
I don't know. I can go back to India real quick for you, though.
30:13.332 --> 30:16.786
And this might be something we want to add in post. But unlike in the
30:16.808 --> 30:20.706
US, where a separate form filing license is not required, if filing a
30:20.728 --> 30:24.254
patent application under the Pct with the US Receiving
30:24.302 --> 30:27.494
Office in India, filing a patent application under
30:27.532 --> 30:30.614
the Pct, even with the India Receiving Office,
30:30.732 --> 30:35.042
will still require a separate form filing license prior to filing.
30:35.186 --> 30:38.490
So you still need it prior to filing.
30:39.070 --> 30:42.886
But if you did just a normal Indian patent
30:42.918 --> 30:47.062
application, then you can get that form violent license
30:47.206 --> 30:50.620
to normal US. But if you're going to do an international filing with
30:50.990 --> 30:54.682
the Indian Patent Office, then you need to do NFL separate.
30:54.746 --> 30:58.398
You still need the NFL, but in the US. You do not. So if
30:58.404 --> 31:02.766
somebody wanted to do that from India and File or some
31:02.788 --> 31:06.450
other country, not India, they can bypass the US
31:06.520 --> 31:10.258
foreign filing license by filing a Pct. Okay.
31:10.344 --> 31:13.998
With the USB office. Exactly. But the other way around doesn't
31:14.014 --> 31:17.506
seem to work for all countries anymore. And if you went through
31:17.528 --> 31:20.806
the IB, then what you might have to like, if you
31:20.828 --> 31:24.200
have now I can't remember.
31:24.570 --> 31:28.134
It depends on you can't use the US receiving
31:28.182 --> 31:31.910
Office if the applicant I think it's that the applicant
31:31.990 --> 31:35.062
isn't a US resident.
31:35.126 --> 31:38.694
So if the company resides in India,
31:38.742 --> 31:42.026
even if it had US inventors, I don't think you could use the US receiving
31:42.058 --> 31:46.362
Office. But if the applicant were a US company, and if the inventors
31:46.426 --> 31:50.046
were wherever, then I think you
31:50.068 --> 31:54.126
can use the US receiving Office or something like that, because I know we've run
31:54.148 --> 31:58.030
into that before, where if it's not the company isn't
31:58.110 --> 32:01.122
a US. Company. If you're not filing under a US.
32:01.176 --> 32:05.342
Company, you have to use the IB or some other competent
32:05.406 --> 32:09.302
office. You can't use the US. I mean the US. Receiving Office will
32:09.356 --> 32:12.658
accept it, but then they'll kick it to the IB and send you a notice
32:12.754 --> 32:15.560
saying, shame on you,
32:17.630 --> 32:20.460
you did it wrong. Right? Yeah. Shame on you. Did it wrong.
32:21.150 --> 32:22.460
Not even a company,
32:24.670 --> 32:29.946
but more
32:29.968 --> 32:32.780
questions and answers. Yeah, always.
32:33.550 --> 32:37.178
Process of do
32:37.184 --> 32:41.482
you for China for inventive activity in China, do you submit a packet
32:41.546 --> 32:45.780
like you do for India pre?
32:46.150 --> 32:50.590
Yeah, they call it confidentiality examination,
32:50.750 --> 32:53.970
but it's not really exist in China. I'm kidding.
32:55.290 --> 32:58.770
Confidentializing. Like, we'll take it and steal it and then no, I'm kidding.
32:58.930 --> 33:02.086
I'm kidding. Yeah.
33:02.188 --> 33:04.600
Just another word for FFL, I guess.
33:07.130 --> 33:10.410
But China has other stuff,
33:10.480 --> 33:14.106
right? Remind me, didn't you just go through the
33:14.128 --> 33:17.994
quick rules on China for
33:18.032 --> 33:21.946
having to get the license? I will tell
33:21.968 --> 33:25.306
you. Actually, I have a page in my notes. Okay. I can't
33:25.338 --> 33:28.734
remember I had a supplementary slide, but I actually ended up taking those
33:28.772 --> 33:32.802
out. That's okay. This is why I look it up every time. Because I asked
33:32.856 --> 33:34.980
myself, what was this one again?
33:36.550 --> 33:40.466
And there's what it was called. Administrative Sanctions is the
33:40.488 --> 33:41.970
scary language.
33:45.770 --> 33:48.886
Let's see. So the request for the
33:48.908 --> 33:52.550
NFL in three ways. File separate request
33:52.890 --> 33:56.150
through the CNIPA without or before
33:56.220 --> 33:59.626
filing an app in China. File a
33:59.648 --> 34:02.826
request for a filing license at or after
34:02.928 --> 34:06.586
filing a Chinese app. Filing a Pct app with
34:06.608 --> 34:10.334
the CNN and IPA as a receiving office, I guess,
34:10.372 --> 34:14.640
is the three ways the
34:15.010 --> 34:18.800
prepacket material? I'm sorry?
34:19.250 --> 34:22.606
The three ways where the prepacket material filing directly with
34:22.628 --> 34:26.180
the Cniba or what was the third one?
34:27.990 --> 34:31.714
Filing for a license at the time or after
34:31.912 --> 34:35.650
a Chinese out. Okay. And the other one was filed Pct
34:35.730 --> 34:38.678
with CNIPA as the receiving office. Right.
34:38.764 --> 34:42.166
To avoid the foreign filing license. Is that
34:42.188 --> 34:44.920
right? Yes, I believe. Okay.
34:46.650 --> 34:49.880
Administrative Sanctions. I think you can use that on your children.
34:53.210 --> 34:56.362
I don't know if it's the Chinese administrative sanctions. I don't know.
34:56.416 --> 34:59.226
It might be kind of unkind. I don't know. No,
34:59.328 --> 35:02.734
you can change them. Whatever you want. Just call them
35:02.772 --> 35:03.360
that.
35:07.970 --> 35:11.226
That's funny. No juice box. That's an administrative
35:11.258 --> 35:11.950
sanction.
35:15.490 --> 35:19.002
Yeah. I guess I kind of to
35:19.076 --> 35:22.306
boil all this down, just brought it into kind of two
35:22.328 --> 35:26.246
summaries. What I was kind of thinking as
35:26.348 --> 35:29.334
takeaways for the practitioner is the who, where,
35:29.372 --> 35:32.710
what, gathering that data
35:32.780 --> 35:35.430
to formulate your strategy.
35:35.770 --> 35:39.720
And then what I've seen several times in some of the references was
35:40.090 --> 35:43.274
if you're a little unsure and working
35:43.312 --> 35:46.826
with two or more countries, it's typically best to start from
35:46.848 --> 35:50.234
the stricter alleviating those
35:50.272 --> 35:54.846
issues and work towards the more lenient. So I
35:54.868 --> 35:58.254
would imagine if you're dealing with stricter country, it'd probably be best
35:58.372 --> 36:01.774
to go the route to filing a patent through them first.
36:01.892 --> 36:05.666
Getting the FFL from somebody. Else. It's just
36:05.688 --> 36:09.534
what I had kind of seen, and then yeah, I've repeatedly
36:09.582 --> 36:13.314
seen it's best to always refer to an associate for
36:13.352 --> 36:16.354
each subject country. It is.
36:16.392 --> 36:19.654
And the worst case of this, if you have three
36:19.692 --> 36:23.090
or four countries involved in this and you cannot
36:23.170 --> 36:26.642
resolve it, you can figure out a way to split
36:26.706 --> 36:30.730
claims and file two separate three separate. That's a good idea.
36:30.880 --> 36:34.970
It's expensive, but often certain
36:35.040 --> 36:38.554
claims don't have all inventors on it, and some do,
36:38.592 --> 36:41.934
some don't. It's another way to get around
36:41.972 --> 36:45.646
it, albeit expensive, because you have multiple applications and you're paying
36:45.668 --> 36:47.950
your practitioner to divide the conquer.
36:49.410 --> 36:50.960
Yeah, I didn't want that.
36:52.210 --> 36:55.454
Yes. And then I guess, my last slide,
36:55.502 --> 36:58.706
just kind of looking at all this through
36:58.888 --> 37:02.434
the business lens, some considerations that
37:02.472 --> 37:03.940
I was just kind of thinking through.
37:05.450 --> 37:08.040
Where are you going to base your R and D out of?
37:08.650 --> 37:12.866
If you're really a big considerance
37:12.898 --> 37:16.306
is timelines, especially on your intellectual
37:16.338 --> 37:20.870
property development. Just like we mentioned with India,
37:21.030 --> 37:25.158
some of those that can add to your filing.
37:25.334 --> 37:28.682
If you desire to file in the US first, I mean, you can be
37:28.816 --> 37:32.234
adding weeks to your filing dates, so that
37:32.272 --> 37:36.250
might be a consideration for R and D or engineering.
37:37.070 --> 37:40.574
So for India, often what I'll do is I'll write kind of
37:40.612 --> 37:43.978
a sub claim center. I'll just do the system or the method,
37:44.154 --> 37:47.858
and then I will quickly put together maybe a flow chart or a
37:47.864 --> 37:51.234
few paragraphs on that and then add boilerplate to that and
37:51.272 --> 37:54.994
submit that as a packet rather than the entire thing.
37:55.192 --> 37:58.818
If I have figures, I will maybe give them a preliminary figure deck
37:58.834 --> 38:02.694
of everything so that's a little more inclusive. And I
38:02.732 --> 38:06.200
have gotten born and final licenses off of that.
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When I've submitted a paragraph and a claim,
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it's worked once, and I've been denied three times.
38:15.470 --> 38:18.380
You do need a little more than that. Very interesting.
38:19.970 --> 38:24.080
I feel like this deserves a cool
38:24.770 --> 38:27.966
software thing where you
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could put in all the who, what,
38:31.252 --> 38:34.574
when, where, why, whatever, all the fact
38:34.612 --> 38:39.022
pattern. Like, here's my inventor fact pattern. And then it spits
38:39.086 --> 38:43.182
out the strategy.
38:43.326 --> 38:46.958
Yeah, or not even the strategy, but here's
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the strictest country based on this inventor, and then
38:51.352 --> 38:54.130
hold whatever you still want to verify.
38:54.210 --> 38:57.666
Right, of course. And then here's more lenient countries.
38:57.858 --> 39:01.158
So here's the tiered of complexities that you're dealing
39:01.174 --> 39:04.854
with. Kind of puts that back pattern into a digestible
39:04.902 --> 39:07.740
thing that you can then act upon. Right.
39:08.190 --> 39:11.754
I feel like there's some interesting software thing
39:11.792 --> 39:15.166
there. Yeah, it could be. But I always learn something when I do
39:15.188 --> 39:18.766
this, when I look something up, always, I'm like,
39:18.788 --> 39:22.160
oh, I didn't know that, or, I forgot I knew that. Right.
39:24.710 --> 39:28.046
I always do the weirdest one I've
39:28.078 --> 39:32.162
ever filed in. And it's not an obscure country by
39:32.216 --> 39:35.794
any means, but it is to have a US inventor filing
39:35.842 --> 39:40.690
in Russia or a Russian inventor filing
39:40.770 --> 39:44.594
in the US. But needing to file in Russia first. That's the inventive
39:44.642 --> 39:47.880
activity, right? Russia's inventive activity, yeah.
39:48.410 --> 39:51.558
So it's so weird because it's not just kind of the laws
39:51.574 --> 39:56.250
that apply, but it's what they ask for and they want like your
39:56.320 --> 39:59.690
patronymic name and
39:59.760 --> 40:04.074
that happens to be like your last name with your father's
40:04.122 --> 40:07.566
last name on the beginning of it. And you have
40:07.588 --> 40:11.294
to know what all of these things are. It's peculiar, but just
40:11.332 --> 40:14.420
not our culture and it's not what we do over here. Right.
40:14.870 --> 40:18.082
The question, because certain countries used to be part
40:18.136 --> 40:22.660
of the USSR, like Ukraine actually,
40:23.190 --> 40:26.530
I know some companies that use have been using developers in Ukraine.
40:26.690 --> 40:30.322
Does Ukraine have any interesting rules
40:30.466 --> 40:33.990
because they kind of were once apart of Russia
40:34.410 --> 40:36.070
or the USSR.
40:37.370 --> 40:40.778
Things break apart. I don't even know if Ukraine has a decent patent system.
40:40.864 --> 40:44.234
You know what I mean? I was
40:44.272 --> 40:47.910
curious what notes I had on the table
40:47.990 --> 40:49.770
about Ukraine.
40:52.510 --> 40:55.870
Well, I don't yeah, I don't think there is a Ukraine listed.
40:56.770 --> 40:59.680
I'll have to look into that and add to it.
41:00.290 --> 41:03.694
Yeah, the magnitude would be a significant patent system, you know what I mean?
41:03.732 --> 41:07.330
I just sort of think about all the countries that kind of broken apart.
41:08.550 --> 41:12.046
Do they have a patented system still? And is it the patent system that's largely
41:12.078 --> 41:15.206
from the parent, the country that they broke apart from? Or do they create their
41:15.228 --> 41:18.200
own weird stuff?
41:19.850 --> 41:23.746
A guide to patenting in Belarus, Ukraine, Georgia and Kazakhstan.
41:23.858 --> 41:26.440
Well, there you go. I'll send that around.
41:29.470 --> 41:34.460
Belarus is a real hot country for technology.
41:35.790 --> 41:39.810
What they are saying is they are definitely developing markets
41:39.990 --> 41:43.306
with improving, evolving patent systems. So they're
41:43.338 --> 41:47.546
coming along, courts have been reformed and they are improving.
41:47.738 --> 41:51.518
So it could be something, could be the
41:51.524 --> 41:52.800
brick countries of the future.
41:54.770 --> 41:58.210
Yeah, who knows? All right, awesome.
41:58.360 --> 42:02.014
Well, thanks Ty. All right, that's all for today folks.
42:02.062 --> 42:05.874
Thanks for listening and remember to check us out@aurorapatants.com for more great
42:05.912 --> 42:09.518
podcasts, blogs, and videos covering all things patent strategy.
42:09.614 --> 42:12.006
And if you're an agent or attorney and would like to be part of the
42:12.028 --> 42:14.978
discussion or an inventor with a topic you'd like to hear discussed,
42:15.074 --> 42:18.710
email us at podcast@aurorapatants.com. Do remember
42:18.780 --> 42:22.434
that this podcast does not constitute legal advice. And until next time, keep calm
42:22.482 --> 42:23.140
and patent on.
