Deciding which countries to seek patent protection in is a crucial decision in the patent life cycle. The decision has a major impact on costs, and determines where you will be afforded patent protection. Patents are territorial, so you will not be afforded protection in territories you do not enter.
Once key milestones in the patent application process pass, additional countries typically cannot be entered.
If patent protection loses its commercial value in specific countries, national patent applications can be abandoned at any stage, and will not incur costs after this point.
Hence, countries can be dropped at a later stage but typically cannot be added.
It’s important for a country strategy to be developed early and before key deadlines, and to consider a range of factors, including foresight into how key markets may evolve.
This article outlines some key considerations to help you form a robust country strategy for your patent application.
Prioritise your key markets
While the optimal patent protection strategy is to cover as many markets of interest as possible, this is often prohibitively expensive. Selecting a subset of key countries based on your budget constraints is likely to be the best approach.
When prioritising territories to seek protection in, you should consider where you may sell your product in the highest volumes, where the highest quantities of your product may be manufactured, and how these factors may change in the future.
This will depend on what your patented technology is, for example, if you have patented a process rather than a product, it may make sense to target heavy manufacturing territories only.
Patent protection may prevent loss of business from competitor products which use your patented technology
Here are the countries with the highest share of global manufacturing in order of size (at Q4 2024):
- China
- United States
- Japan
- Germany
- Republic of Korea
- India
- United Kingdom
- Italy
- France
- Mexico.[1]
Countries with a higher share of global manufacturing are likely to yield the best cost to benefit ratio for seeking patent protection in. They often contain the largest markets for things that can be patented, such as consumer products, drugs, chemical compositions, and manufacturing processes. In most cases, products that infringe your patent are most likely to be manufactured in the highest volumes in these countries. These main manufacturing countries should typically form the foundation of your country strategy.
Even if you do not sell into all of these territories, it can still be worth seeking patent protection to facilitate international licensing opportunities, and to prevent infringing products from being sold.
As a part of your strategy, you may wish to consider how competitive your product can be with existing technologies in each market, and what unique advantages your patented features offer.
Smaller markets such as Australia and New Zealand should also be considered for strategic reasons, as discussed below.
Protect in your location of manufacture
You should seek patent protection in your location of manufacture. A manufacturer will typically possess detailed knowledge on the construction of your product and its manufacturing process, this presents risks if the relationship dissolves. Your main competitors are also likely to manufacture in your country of manufacture.
Where are your competitors operating?
It is often worth seeking patent protection in the locations that your key competitors manufacture and sell. Protection in these areas may prevent or discourage your competitors from selling infringing product.
Consider locations for licensing opportunities
You should consider markets where you may be able to secure licensing opportunities, including markets where you won’t be selling any product yourself. This could involve reaching out to potential licensees in advance of filing to gauge interest, and considering where other licensing arrangements in your technology sector have historically been formed.
You may also wish to consider markets where cross licensing may be possible, where your competitor already has patents in your product area, and you and your competitor may be able to cross license from each other’s patent portfolio. This has the advantage of covering your products with both your own patents and your competitors patents. It can also avoid your competitor asserting their patents against you in the future.
File in your home country
Filing where your business is based is usually worthwhile, especially if you manufacture and employ staff in that country, as they generally have access to detailed insider information regarding your products. Filing at home may prevent former employees from setting up rival businesses with technical information from your business. It is also often an easier location to identify and act against infringers of your patents.
Do regional patent offices cover your key markets?
Some territories have regional patent offices that allow you to file a single application that can be granted, and subsequently be registered with relative ease in multiple territories within that region with no further examination. The most notable example of this is the European Patent Office (EPO), which covers a large quantity of European member countries. Such a pathway can be used to obtain protection in a number of countries more simply and at a lower cost.
Due to the collective market significance of the European member countries, deciding what EPO member countries to seek protection in is often a key part of an international filing strategy. Germany, the United Kingdom, Italy, and France are good choices due to their market sizes, and selecting countries containing major European ports such as the Netherlands may also allow you to prevent imports of infringing product.
Summary
A good country strategy often starts by identifying major markets as a foundation, and then layering more strategic territories on top of this. What territories may be strategic tends to vary a lot depending on your technology area and commercial factors.
Please connect with an AJ Park expert if you would like advice on where to file your patent. We are happy to help!
[1] Quarterly Report, Q4 2024 World Manufacturing Production, United Nations Industrial Development Organisation.
