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Foreign Applicants for U.S. Patents
The patent laws of the United States make no discrimination
with respect to the citizenship of the inventor. Any inventor,
regardless of his/her citizenship, may apply for a patent
on the same basis as a U.S. citizen. There are, however,
a number of particular points of special interest to applicants
located in foreign countries.
The application for patent in the United States must
be made by the inventor and the inventor must sign the
oath or declaration (with certain exceptions), differing
from the law in many countries where the signature of
the inventor and an oath of inventorship are not necessary.
If the inventor is dead, the application may be made by
his/her executor or administrator, or equivalent, and
in the case of mental disability it may be made by his/her
legal representative (guardian).
No U.S. patent can be obtained if the invention was
patented abroad before applying in the United States by
the inventor or his/her legal representatives if the foreign
application was filed more than 12 months before filing
in the United States. Six months are allowed in the case
of designs. 35 U.S.C. 172.
An application for a patent filed in the United States
by any person who has previously regularly filed an application
for a patent for the same invention in a foreign country
which affords similar privileges to citizens of the United
States shall have the same force and effect for the purpose
of overcoming intervening acts of others as if filed in
the United States on the date on which the application
for a patent for the same invention was first filed in
such foreign country. This is the case, provided the application
in the United States is filed within 12 months (six months
in the case of a design patent) from the earliest date
on which any such foreign application was filed and claims
priority under 35 U.S.C. 119(b) to the foreign application.
A copy of the foreign application certified by the patent
office of the country in which it was filed is required
to secure this right of priority.
If any application for patent has been filed in any
foreign country by the applicant or by his/her legal representatives
or assigns prior to his/her application in the United
States, in order to claim priority under 35 U.S.C. 119(b)
to the foreign application, the applicant must, in the
oath or declaration accompanying the application, state
the country in which the earliest such application has
been filed, giving the date of filing the application.
If foreign priority is claimed, any foreign application
having a filing date before that of the application on
which priority is claimed must also be identified in the
oath or declaration. Where no claim for foreign priority
under 35 U.S.C. 119(b) is made in the U.S. application,
the applicant should identify in the oath or declaration
those foreign applications disclosing similar inventions
filed more than a year before the filing in the United
States.
An oath or alternatively a declaration must be made
with respect to every application. When the applicant
is in a foreign country the oath or affirmation may be
before any diplomatic or consular officer of the United
States, or before any officer having an official seal
and authorized to administer oaths in the foreign country,
whose authority shall be proved by a certificate of a
diplomatic or consular officer of the United States. The
oath is attested in all cases by the proper official seal
of the officer before whom the oath is made.
When the oath is taken before an officer in the country
foreign to the United States, all the application papers
(except the drawing) must be attached together and a ribbon
passed one or more times through all the sheets of the
application, and the ends of the ribbons brought together
under the seal before the latter is affixed and impressed,
or each sheet must be impressed with the official seal
of the officer before whom the oath was taken. A declaration
merely requires the use of a specific averment found in
37 CFR 1.68.
If the application is filed by the legal representative
(executor, administrator, etc.) of a deceased inventor,
the legal representative must make the oath or declaration.
A foreign applicant may be represented by any patent
attorney or agent who is registered to practice before
the United States Patent and Trademark Office.
uspto.gov
Online information resources. Patents-i.net
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