Introduction

Although patent rights are territorial, the commercial potential of an invention is not limited by borders. Most IP offices today allow foreign applicants to file for patent protection. This means the exclusive right to prevent others from making, using, selling, or importing your invention can be expanded beyond your home country. Such expansion can happen in two ways: 

a) you either file directly (taking advantage of the Paris Convention) in each country you want to seek protection within 12 months of your first application, or 

b) you take the Patent Cooperation Treaty (PCT) route and secure yourself an international filing date (accepted by every country under PCT) and then file directly in each country you want to seek protection within 30 or 31 months of your priority date.

Whichever path you choose, the time is limited. Within these timelines, you must identify the right countries, prepare your documents, and execute each foreign filing. It may feel overwhelming at first; but with the right approach, you can strategically decide where your invention deserves protection.

1. When to Start Deciding

The earlier you begin, the smoother the process. It’s great if you already know the countries you want to file in before filing your first patent application. But if you start deciding afterward, aim to finalize your list at least 6 months before your due date. Evaluating countries’ potential that matches with your invention, often takes longer than the filing itself.

2. Understand Potential of Your Invention

Your invention isn’t defined by a single factor. Different countries can support or limit different aspects of it. Some key considerations include:

a) Market and Customer Readiness: Your patent should align with where you expect real customers. Markets already familiar with similar technologies tend to adopt new innovations faster, meaning quicker traction and higher returns. Target regions where your ideal customers are not only present but already primed to understand and value your invention. 

For example if your product is an EV battery diagnostics tool, markets like China and Norway, where electric vehicle penetration is high, would value the technology immediately.

b) Competition Landscape: Competition is guaranteed, the question is where it will hit hardest. Identify countries where competitors could easily replicate or manufacture your invention. These are often the places where IP protection matters the most. You’re not choosing countries just to maximize opportunity; you’re also choosing them to minimize vulnerability. 

For example: For a machine learning model embedded into industrial robotics, robust protection in countries like Japan and South Korea is crucial since competitors in those regions can easily integrate similar technology into existing robotics platforms.

c) Material or Equipment Availability: If your invention depends on specialized components or manufacturing facilities, prioritize countries where these resources already exist. For example, a startup developing AI-based hardware may benefit more from patenting in regions with strong electronics ecosystems like Taiwan or South Korea where manufacturing and licensing prospects naturally thrive. 

However, If components are widely available from a single source, ensure an NDA or licensing agreement is in place. Obtaining such materials may require disclosing technical details, and if others source from the same supplier, your invention could be exposed in foreign jurisdictions before securing patent protection.

A practical approach is to list these critical factors by country and see which jurisdictions align with your business strategy.

3. Other Influential Factors

a) Enforcement Challenges: Each country’s patent office has its own speed and process. Some are efficient and examiner-friendly, while others may be slow, inconsistent or even costly. Knowing this upfront helps avoid future delays and frustration.

b) Budgeting Smartly: When funds are tight, you can start with key markets and expand later as revenue grows. 

Conclusion:

There may be times when following such a structured listing leads you to a smaller set of countries or even causes you to avoid a region you initially thought essential. But don’t be discouraged; this approach is intentionally flexible. 

Think of this country-selection exercise as your foundation for a strategic map that can grow as your business evolves, even offering additional insights if you develop further improvements to your initial technology.

Ultimately, choosing where to file is not about chasing every market; it’s about aligning protection with business opportunity, manufacturability, and risk. By understanding the core aspects of your invention, evaluating customer readiness, and recognizing where competitors might act first, you build a strong defensive and commercial position.

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Interested in innovation, technology and IP protection? I have insights into how technology protection works from my years in the field, and I’ll be sharing more in future newsletters.

Connect with me if you’re thinking about IP protection!