Three inventors - one Dutch, one Chinese and one Greek - get together in the USA and invent something with each other. It sounds like the start of a joke, but it is often the start of something great. In fact, international collaboration often leads to wonderful innovations. However, the subsequent patent application can turn into a flop if you are not familiar with the rules that apply in the countries involved in the innovation. This is because when it comes to patent applications different rules apply in different countries. In this blog you can read all about how this works and, of course, how to ensure that you get it right.
Applicant versus inventor
Let's start by looking at some of the basics. There are usually two parties involved in a patent application. The applicant and the inventor. The applicant is generally a company which employs the second party, the inventor. But what happens if the inventor is not a Dutch national? Or if the inventor comes up with the idea for an innovation in a different country? If that happens, alarm bells should start to ring. If you do not comply with the applicable rules of the country in question, in most cases the consequences of this will not be for the company, but for the inventor. Your employee, in other words.
Different countries, different rules
Patent law differs from country to country when it comes to the following aspects:
1. Country where the invention was created.
or
2. The inventor's nationality.
or
3. The inventor's residency.
In the US and China, for example, it is all about the country in which the invention was created. So if you have a branch in the US and your Dutch employees come up with an innovation while visiting that branch you cannot first apply for a patent in the Netherlands. You will need to apply for a foreign filing licence in the US and if this is granted, you can start to arrange protection in other countries. The country of invention is also a very important aspect in the Netherlands, but here you only have to apply for a patent in the Netherlands first if it involves an innovation in the field of defence and national security.
Greece starts out from the inventor's nationality. According to Greek law it doesn't matter where a Greek invents something. So if you employ a Greek national, you will first have to apply for a patent in Greece if this person invents something.
India takes a different approach again. The most important aspect here is 'residency'. A Dutch national may live in India and therefore have residency there. In that case, Indian law will apply to any patents. To complicate matters even further, exactly when someone is a resident varies from country to country. In India, the criterion is resident for tax purposes and so a person can continue to be resident for tax purposes for some time after they have returned to their home country. In other countries, things works differently again.
The reason behind legislation
I can imagine that you're wondering why it is so hard to break down national borders when it comes to innovations. It is because knowledge is considered to be an export product. For example, if it involves security-relevant technology that you are trying to 'export', the country itself can still try to intercept your innovation.
Consider in advance how you want to tackle the patent application
So if you are a Dutch company working on innovations abroad or with foreign employees, you should first find out what the rules and regulations are in the countries in question and what this means for your patent application.
And that can be quite complex as can be seen from the earlier example involving a Greek inventor. In Greece, what matters most is the inventor's nationality, not where the Greek individual in question create the invention. But just suppose that same Greek is a resident of India, travels to the US and invents something there. Then Greek law will apply because they are a Greek national, Indian law because they are resident in India and US law because they created the invention in the US.
In short: it is a complex matter which can be costly for the inventor - your employee - if you fail to look into this. You should do so in good time and then enjoy the innovations that international collaborations bring without having to worry about this.
If you want some advice on the patent laws that apply to you, please feel free to contact me. I would be happy to share my thoughts on this with you.
