What is a Foreign Filing License?
A foreign filing license is a license granted by the U.S. Patent and Trademark Office (USPTO) permitting a patent applicant to file a patent application for US-made invention in a foreign country.
One of the perhaps lesser-known roles of the USPTO is the review of patent applications for sensitive technical information to prevent the unauthorized export of certain information to foreign countries. While this might seem logical and obvious for inventions with military applications, some might be surprised to learn that every invention or design made in the U.S. must receive a foreign filing license before an application for that invention or design is filed outside the U.S. There are no technology category exceptions — even a design patent application for a new stuffed animal must receive a foreign filing license before filing abroad. The only exception to this rule is if an application for the same invention or design was already filed in the US more than 6 months earlier.
Foreign filing licenses are routinely granted by the USPTO as part of the application process, usually within a month or two of filing the application. The grant of license is listed in the official filing receipt for the application. If you want to file an application with the World Intellectual Property Organization (WIPO), or a foreign patent office before filing in the US, or before you’ve received a foreign filing license, you must file a petition with the USPTO under 37 CFR § 5.12 to get a foreign filing license first. And all is not lost if you accidentally filed in another country before obtaining a license – retroactive licenses can normally be obtained if certain requirements are met. See 37 CFR § 5.25.