Foreign Patent Applicants
Executive summary:
The patent laws of the United States generally do not discriminate with respect to the citizenship of the inventor. Any inventor, regardless of her/his citizenship, may apply for a patent on the same basis as a U.S. citizen. There are, however, several areas of special interest to applicants located in foreign countries:
Filed by Inventor:
All U.S. patent applications must be made by the inventor. This differs from the practice in most countries where application is usually filed in the name of the owner of the patent (such as the inventor's employer). In the United States, the application and the oath must be signed by the inventor. If the inventor is dead, the application may be made by her/his executor or administrator, or equivalent, and in the case of mental disability it may be made by her/his legal representative or guardian.
Foreign Oaths:
An oath or declaration must be made with respect to every patent application. When the applicant is in a foreign country the oath or affirmation may be made 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. If the application is filed by the legal representative of a deceased inventor, the legal representative must make the oath or declaration.
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.
Typically, it is easier for foreign inventors to use a declaration rather than an oath. When a declaration is used, the ribboning procedure is not necessary, nor is it necessary to appear before an official in connection with the making of a declaration.
Claiming Priority:
No United States patent can be obtained if the invention was patented abroad more than 12 months before filing in the United States. Six months are allowed in the case of a design patent. These twelve and six month periods are the grace periods allowed under the Paris Convention (for more information, see the BitLaw page on International Applications). In order to utilize the Paris Convention grace periods, the original application must have been for the same invention in a foreign country which affords similar privileges to citizens of the United States. In addition, the application in the United States must be 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. 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.