US PATENTS Part IV

ARE ALL PATENTS ON FILE IN THE US PATENT OFFICE?

Only those patents which have been granted by the US Patent Office or foreign patents which have been filed with the US Patent Office will be on file. For instance, if someone lives in Switzerland and obtains a Swiss patent for their invention and then files that patent with the US Patent Office, the Swiss patent will be on file and will be available to you when you have an initial patent search done. However, the Swiss patent by itself does not protect the invention in the US or anywhere outside of Switzerland. If the Swiss inventor merely files the patent in the US Patent Office; this has the effect of advising the US Patent Office that this invention has been patented in Switzerland. It does not grant protection under US or Canadian law to that invention. For this to occur, the Swiss inventor would need to apply for a US patent. If the Swiss inventor was successful, the product would be patented in both Switzerland and the US.

WHY WOULD A FOREIGN PATENT BE RELEVANT TO THE US PATENT EXAMINER?

If you are applying for patent protection in the US or Canada, the patent examiner will need to know whether the idea is, in fact, unique or novel on a worldwide basis. If your idea has already been granted patent protection by Switzerland, then the idea is clearly not novel or unique on a worldwide basis. In that example, the patent examiner would likely reject your application on the grounds that your product or idea has already been patented. The fact that the invention has not received a US or Canadian patent will not make any difference, insofar as your ability to obtain a patent.

However, if you are concerned about infringement (i.e., being sued for patent infringement in the US or Canada); then the fact that the invention was patented in Switzerland and not the US or Canada would be of importance to you. A Swiss patent only protects the idea or product in Switzerland, but not elsewhere. Therefore, you would be lawfully able to manufacture or sell the product in Canada or the US, so long as the product or idea has not been patented in Canada or the US.