Understanding the territorial scope of an industrial property right
When we think of a patent, we often imagine that it protects an invention worldwide. However, this preconceived idea does not correspond to legal reality. By its very nature, a patent is a territorial right, meaning that it only has effect in the countries where it has been validly granted or recognized. If you're an inventor, entrepreneur or simply curious about industrial property law, it's essential to understand the geographical limits of patents if you want to secure your innovation.
The patent: a territorial right by definition
A monopoly limited to a territory
A patent is a legal title which confers on its holder an exclusive right to exploit a technical invention. This right prevents any third party from manufacturing, using, selling or importing the invention without authorization. However, this monopoly of exploitation applies only in countries where the patent has been granted.
In practical terms, a patent obtained in France only protects the invention on French territory. It cannot block a competitor marketing the same invention in Germany, the United States or China, unless specific steps have been taken in these countries.
Every country, every system
Each country has its own patent system, with its own rules, procedures, time limits and fees. Even if international conventions harmonize certain substantive rules, there is no worldwide patent that is automatically valid in all countries.
This means that to obtain international protection, an inventor must choose the countries in which he wishes to protect his invention, and take the appropriate steps in each of them, or via centralized procedures provided by regional or international agreements.
Solutions for extending a patent abroad
National deposit in each country
The simplest but most restrictive method is national filing, which involves filing a separate patent application in each country where protection is sought. This solution offers great freedom of choice, but involves repeated administrative formalities, translations, the use of local agents and the payment of fees specific to each jurisdiction.
This route is appropriate when targeting a limited number of countries, or when other options are not available for the targeted territory.
The European patent: regional protection
To protect an invention in Europe, you can go through the European Patent Office (EPO). This system makes it possible to file a single application, which, after examination and grant, can be validated in several member states of the European Patent Convention (EPC).
Once a European patent has been granted, it must be validated nationally in each designated country (except in the case of unitary effect), which may involve additional costs and formalities . The European patent thus remains a collection of national patents, with independent effects in each country concerned.
Since 2023, a European patent with unitary effect has made it possible to obtain homogeneous protection in several EU member states, considerably simplifying post-grant procedures, but not yet covering all European countries.
The PCT (Patent Cooperation Treaty) system
The most effective way of seeking worldwide protection is to use the PCT (Patent Cooperation Treaty) procedure, administered by the World Intellectual Property Organization (WIPO). This procedure does not grant an international patent, but it does enable a single application to be made for the extension of a patent in over 150 countries.
The PCT comprises two phases :
- An international phase, with a single application, prior art search and publication ;
- A national or regional phase, in which the inventor chooses the countries in which he wishes to pursue the procedure, with the formalities specific to each.
The main advantage of the PCT is that it defers costs and decisions for around 30 months after the first filing, giving time to assess the invention's commercial interest in foreign markets.
The absence of a patent in a country: what are the consequences ?
Risk of unauthorized operation
If an invention is not protected by a patent in a given country, it can be freely exploited there. In other words, a competitor is perfectly entitled to manufacture or sell the invention in that territory, without infringing it.
For example, a French company that registers a patent in France alone will not be able to do anything against a German company that manufactures the same product in Germany, unless it has also registered a patent in Germany. It is therefore essential, when conquering an international market, to plan for the necessary filings.
The impossibility of bringing an infringement action
In the absence of a patent in a country, no legal action for infringement can be brought. The patentee has no rights against third parties in that territory. Nor can he prevent the importation into that country of products derived from his invention, or demand the withdrawal of such products.
Building a protection strategy
Select key countries
Protecting your invention abroad means making strategic choices. It is neither realistic nor useful to apply for protection in every country in the world. You need to target priority markets, potential manufacturing zones, or countries with a high risk of infrigement.
The analysis must include criteria such as market size, presence of competitors, barriers to entry, and filing and maintenance costs.
Evaluate costs and resources
Extending a patent internationally represents a major investment. You need to factor in filing fees, translations, annual fees, agent fees, and possibly validation costs. It is essential to plan a realistic budget, taking into account commercial priorities and expected profitability.
In addition, it is advisable to enlist the help of an industrial property attorney to build a coherent filing strategy, secure procedures and optimize the chances of issuance.
A powerful but geographically limited right
No, a patent is not valid in all countries. It is a territorial right, which only takes effect where it has been applied for, granted and maintained. To protect an invention internationally, it is therefore essential to implement an appropriate extension strategy, whether through national or regional filings, or via the PCT procedure.
Patent protection is an essential lever for promoting innovation, but it requires rigor, anticipation and professional support. When properly conceived, this strategy secures your invention, limits the risk of copying and paves the way for successful international exploitation.