Beware of Internet Answers on Patent Law. Episode 102

Back from Hiatus – New YouTube Videos

It’s been several months since I released a regular Patenting for Inventors podcast. Since then, I’ve created some patent law videos on YouTube, so be sure to check out my YouTube channel at Diament Patent Law.

I decided to do another episode called “Beware of Internet Answers on Patent Law,” and I may even make this a regular feature. In it, I’ll find questions people ask online, go over the question, discuss the answers others have given, and explain how they were wrong or incomplete. The point is to show you why you really need to be cautious about information you find online—and why you should contact a patent attorney with your specific questions.

The Question from Quora

In this episode, I’m going over a question I saw on Quora.com, a site where people ask and answer questions, and where answers can be upvoted or downvoted by other users.

I often respond to patent-related questions when I get notified, and sometimes people have already answered—but I like to chime in as well.

Here’s the question I came across:

“If a technology is patented in the U.S. only, could a Chinese company be able to develop and sell the technology in China?”

I didn’t realize someone had already answered it, so I submitted my own answer. Hopefully, if you’ve been a regular listener to my podcast, you already know the answer.

Understanding Territorial Patent Rights

Patents are country-specific. Sometimes, there are regional patents that cover multiple countries, but as a general rule, one patent only applies to one country.

So, if you have a U.S. patent, you can exclude others from making, using, selling, offering to sell, or importing your patented invention in the United States.

A Chinese company cannot make your patented invention in China and then import it into the U.S. However, if everything is done outside of the U.S., your U.S. patent is meaningless in that situation.

I then went into a little detail about cost-benefit analysis—how inventors should evaluate which countries to file in, since trying to patent worldwide can cost hundreds of thousands of dollars or more.

The Answers from the Internet: Where Things Go Wrong

Next, I reviewed some of the answers people gave. The first answer didn’t even address the question. I’ll call this person John.

John said anyone can patent in China, and that there’s an international agreement stating that patents filed in another country within a year will be considered the first filer. So, if you file in the U.S., you have a year to file in Europe or China, and then wait a year to see if anyone else has filed. If not, you can file in China and start selling there.

While there were some true statements, this didn’t actually answer the original question—which was about what rights a U.S. patent gives you when someone operates only in China.

Then another person, Mark, chimed in and said, “You can never patent anything that has already been patented by another person anywhere else, as this would not be that person’s invention.”

Mark was trying to say that a non-inventor cannot file a patent, which is legally correct. But I think what John was trying to say is that if an inventor files in one country, that same inventor can file in another country within one year. That’s also true. Mark is correct that only inventors can legally file, but John was referring to the same inventor, not someone else.

Then John responded to Mark, referencing the “World Patent Agreement”—which doesn’t exist. He probably meant the Patent Cooperation Treaty (PCT). He said that you have a year to file in another country if you filed first in one. Then Mark responded by saying, “No, you’re free to manufacture it, but you can’t patent it.”

Clearing Up the Confusion

At that point, I decided I had to jump in. The amount of bad information was getting out of hand.

John was mostly correct—an inventor can file a patent application in another country within 12 months of the original filing date. But again, that’s not even what the original question was about.

This isn’t about who can manufacture something—it’s about patenting. Anyone can manufacture anything, with or without a patent—as long as they’re not infringing someone else’s patent.

A Flawed Assumption About Checking Foreign Applications

One point of contention I had with John’s answer was when he said that you can check to see whether someone filed a patent application in China one year after the U.S. filing date.

Let’s break that down.

If someone files a U.S. patent application on January 1, 2020, John implied that you could check the Chinese patent database on January 2, 2021, and see if anything was filed. The problem is—just because something has been filed doesn’t mean it has published yet.

Applications do not publish in real time. It can take months to become publicly available.

So, if you check on January 2, 2021, and don’t see a Chinese filing, that does not mean one hasn’t been filed. It may simply not be published yet.

I’m not a Chinese patent attorney, but it seems Chinese applications generally publish 18 months after the earliest priority date, which is similar to the U.S. system. It may be more complicated than just saying “18 months,” and I don’t want to give you incorrect information about Chinese law.

The Takeaway

There are two key points I want to emphasize:

1. You can’t rely solely on published patent databases to determine whether an application has been filed, especially if it hasn’t reached the publication stage yet.

2. Don’t trust random internet answers about patent law. There’s a lot of misleading or flat-out wrong information out there—even when parts of it sound right.

I’m Adam Diament, and until next time, keep on inventing.