Patent territoriality
Also called territorial nature of patents, territorial principle, geographic jurisdictions, patent jurisdiction, territorial scope of patents
Patent territoriality means that a patent has legal effect only in the country or region where it was granted. WIPO says the owner's exclusive right applies within the country or region in which the patent was granted1, and the USPTO says U.S. patents are effective only within the U.S. and its territories and possessions2.
WIPO describes two ways to protect an invention in several countries: separate filings under the Paris route, or one application under the Patent Cooperation Treaty (PCT)3. See PCT application and Patent family.
Independent patents in each country
Article 4bis of the Paris Convention says patents applied for in the various countries of the Union by nationals of countries of the Union are independent of patents obtained for the same invention in other countries, whether members of the Union or not4. The Article adds that this is to be understood in an unrestricted sense, in particular that patents applied for during the period of priority are independent as regards the grounds for nullity and forfeiture and as regards their normal duration4.
A U.S. patent is effective only within the U.S. and its territories and possessions2, and WIPO's PCT FAQ says patents are territorially limited3. Article 4bis(5) adds that a patent obtained with the benefit of priority has the duration it would have had if it had been applied for or granted without priority4.
Routes to several jurisdictions
No route gives one patent that is valid everywhere3. Each route ends in patents that take effect in specific countries or regions. The table summarizes the routes this page covers.
| Route | What it does |
|---|---|
| Direct or Paris route | File separate applications at the same time in each country, or file in a Paris Convention country and then file separate applications in other Paris Convention countries within 12 months from the first filing, claiming the first filing date3. The period is 12 months for patents (Article 4C(1)). A later filing within it is not invalidated by acts in the interval, such as publication or exploitation of the invention, but rights acquired by third parties before the first application are reserved under domestic law (Article 4B)4. See Priority date. |
| PCT route | One international application, which has the effect of a national application (and certain regional applications) in or for all PCT Contracting States. The granting of patents remains under the control of the national or regional offices in the national phase3. See PCT application. |
| European patent | The grant of a European patent may be requested for one or more of the Contracting States (Article 3 EPC)8. In each state for which it is granted it has the effect of a national patent granted by that State, unless the EPC provides otherwise (Article 2(2))7. |
| Unitary patent | A European patent granted with the same set of claims for all participating Member States may benefit from unitary effect once that effect is registered (Article 3(1) of Regulation (EU) No 1257/2012)11. The EPO says it is an additional option alongside national patents and conventional European patents, not a replacement for them12. |
| Unified Patent Court | A court, not a patent. Its decisions cover, for a European patent, the territory of the Contracting Member States for which the patent has effect (Article 34 UPCA)14. See Unified Patent Court. |
Europe: three different territorial effects
Europe has several systems side by side12, and the territory a decision or right covers differs between them. The list of forums below is not exhaustive.
European patent
- A European patent confers on its proprietor, from the date the mention of grant is published in the European Patent Bulletin, in each Contracting State for which it is granted, the same rights as a national patent granted in that State. Any infringement is dealt with by national law (Article 64(1) and (3) EPC)9. In UPC states, infringement actions may instead go to the Unified Patent Court (see the UPC tab)16.
- Within nine months of that publication any person may file an opposition at the EPO, and the opposition applies to the European patent in all the Contracting States in which it has effect (Article 99(1) and (2) EPC)10.
- To the extent the patent is revoked or limited in opposition, limitation or revocation proceedings, it is deemed not to have had the effects specified in Article 64 from the outset (Article 68 EPC)13.
Unitary patent
- A European patent with unitary effect has a unitary character. It provides uniform protection and has equal effect in all the participating Member States. It may only be limited, transferred or revoked, or lapse, in respect of all of them, and it may be licensed for the whole or part of their territories (Article 3(2))11.
- Unitary effect extends only to those participating Member States in which the Unified Patent Court has exclusive jurisdiction over European patents with unitary effect at the date of registration (Article 18(2))11.
- The EPO says Unitary Patents registered since 1 September 2024 cover 18 member states and those registered before covered 17, and that the coverage of a given patent stays the same for its whole life, whatever ratifications follow15.
Unified Patent Court
- The Court has exclusive competence over, among other things, actions for infringement, for revocation and for provisional measures concerning patents. National courts of the Contracting Member States remain competent for actions that do not come within that exclusive competence (Article 32)16.
- For seven years after entry into force of the Agreement, an infringement or revocation action on a European patent may still be brought before national courts, and proprietors may opt out of the Court's exclusive competence in the way Article 83 sets out17. The opt-out applies only to a European patent as Article 2(e) defines it, which does not have unitary effect, so a Unitary Patent cannot be opted out17,20. The Unitary Patent system was launched on 1 June 202315.
- Decisions cover, for a European patent, the territory of the Contracting Member States for which the European patent has effect (Article 34)14.
United States: acts inside and outside the country
The US Patent Act ties infringement to acts in the United States, with three main extensions that reach importation and sale in the US of products made abroad by a US-patented process, and the supply of components in or from the United States for combination abroad5.
- Section 271(a). Whoever without authority makes, uses, offers to sell or sells any patented invention within the United States, or imports into the United States any patented invention during the term of the patent, infringes the patent5.
- Section 271(f)(1). Liability for supplying or causing to be supplied in or from the United States all or a substantial portion of the components of a patented invention, uncombined in whole or in part, in such manner as to actively induce their combination outside the United States in a manner that would infringe if it occurred within the United States5.
- Section 271(f)(2). Liability for supplying or causing to be supplied in or from the United States a component especially made or especially adapted for the invention and not a staple article suitable for substantial noninfringing use, knowing that, and intending that, it will be combined outside the United States in an infringing manner5.
- Section 271(g). Liability for importing into the United States, or offering to sell, selling or using within the United States, a product made by a process patented in the United States, if that happens during the term of the process patent. A product is not considered so made after it is materially changed by later processes or becomes a trivial and nonessential component of another product5.
The Supreme Court describes the background rule this way: no infringement occurs under US patent law when a patented product is made and sold in another country, and section 271(f) is an exception6. It also applied the presumption against extraterritoriality, noting that foreign conduct is generally the domain of foreign law6. See Patent infringement.
Before filing abroad
Some countries add a step before an invention made at home can be filed in another country18,19. Two examples:
- United States. Unless authorized by a license, a person shall not file or authorize filing in a foreign country, before six months after filing in the United States, an application for patent for an invention made in the United States (35 U.S.C. 184(a))18.
- China. An entity or individual that intends to file a patent application in a foreign country for an invention or utility model accomplished in China must first request confidentiality examination by the patent administration department under the State Council (Article 19 of the Patent Law). An applicant filing an international application must follow the same rule19.
The two rules above turn on where the invention was made. Other countries' rules may turn on other connecting factors, so check each one that may apply.
Seen in the record
A Supreme Court decision shows where section 271(f) stops6.
Microsoft Corp. v. AT&T Corp.
The Court held that, because the copies of the software installed on the foreign-made computers were not exported from the United States, the supplier did not supply components of those computers from the United States and was not liable under section 271(f) as written6.
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Run FTO SearchQuestions people ask
Does a US patent protect my invention in other countries?
No. A U.S. patent is effective only within the U.S. and its territories and possessions2, and WIPO says patents are territorially limited3. Protection elsewhere needs patents granted by, or taking effect in, those countries or regions3,4.
Is there a single international patent?
No. A PCT application has the effect of a national application in or for all PCT Contracting States, but the granting of patents remains under the control of the national or regional patent offices in the national phase3.
Can something done abroad infringe a US patent?
Generally not, but there are exceptions. The Supreme Court states the general rule that no infringement occurs when a patented product is made and sold in another country, and names section 271(f) as an exception6. Importing a patented invention into the United States during the term is itself an act of infringement under 271(a), and importing a product made by a US-patented process can be under 271(g)5.
Does a unitary patent cover all of Europe?
No. It covers only the participating Member States in which the Unified Patent Court had exclusive jurisdiction at the date of registration11. The EPO states that Unitary Patents registered since 1 September 2024 cover 18 member states, and that coverage does not grow later15.
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