An international patent application is filed under the Patent Cooperation Treaty (PCT) and is commonly used as an avenue for filing national stage applications in whatever country an inventor desires patent protection. The international patent application requires some identifying information, a written description, claims and, in most cases, drawings. While anyone can file a national stage application in any country in the world, the PCT application is much more restrictive.
Competent receiving office for an international patent application
The international patent application is filed in a “receiving office”, however, the receiving office will only accept the application for processing if it is “competent.” Under PCT Rule 19, a receiving office is competent if an inventor or owner of the application is a either 1) citizen or 2) resident of the country housing the receiving office. Of course, not every country has a receiving office. The International Bureau in Geneva, Switzerland is a competent receiving office for everyone. Filing an international patent application may sound easier than it is, so many inventors opt to have a patent attorney. Every local receiving office has its own requirements as to what kind of patent attorney is competent to file an application. For instance, the USPTO requires patent attorneys to register, pass a test and demonstrate competence in patent practice. The International Bureau requires that patent attorneys be a citizen or resident of the same country as the client that the represent.
Filing an international patent application with a foreign patent attorney
This creates the problem of wanting to have a patent attorney in another country file an international patent application on your behalf. To solve this problem, the inventor needs to set up a business entity in the country in which the patent attorney is a citizen or resident. For instance, if you want me (a citizen of the United States) to file an international patent application in the United States, and you are not a citizen or resident of the United States, I will need to set up a corporation or LLC, which will own your patent application for you. You can own the corporation or LLC, but to have the USPTO be a competent receiving office we need the owner of the application to be an American citizen and an American corporation meets that requirement.