US patents – more important than ever

In 2012 2.35 million patent applications were filed worldwide. This corresponds to a possible application rate of 268 per hour and an increase to the previous year by 9.2 %. Since the early 1980s, the annual applications have thus almost quadrupled. For the first time more than 1 million patents were granted in 2012. A total of 8.66 million patents worldwide are in force. This increases the risk for enterprises to be excluded from the other markets by innovation – especially by the noticeable trend of oligopolisation of high-tech markets (automotive, smartphones). In 2011 for the first time the Chinese ZTE Corporation was the top-applicant with 2,826 applications. An increase over the previous year of approximately 1,000 applications. Patents serve more and more as a source of revenue through licensing and litigation. The worldwide licensing revenue by intellectual property rights was in 2010 approximately 200 billion US$. The expenditure on patent litigation, patent licensing and purchasing since 2010 were e.g. in the smartphone industry 20 billion US$. In 2011 Apple and Google for the first time spent more money on patent litigation, licensing, and patent purchases, as for their R&D. The application trend to patent families expands, where the U.S. application plays more and more an important role. In 2011 504,600 applications were registered with the USPTO. Even by the recent revelations of the secret service activities, companies are more than ever confronted with the task to secure their intellectual property in an early stage. This makes the application of intellectual property rights in the USA a mandatory step. In our experience, the most sensible strategy for an affordable and powerful protection of intellectual property it the patent application with the U.S. Patent Office and, shortly before the expiration of the priority period, followed only by appropriate applications in specifically selected European countries. We recommend EPO and PCT applications only in special cases. In enforcing a property rights, a U.S. patent has the advantage that only one patent court has jurisdiction to potentially 314 million users. Furthermore, U.S. patents typically have a much larger potential scope due to the wider claims compared to Europe and Germany. After writing the U.S. application it is only necessary to translate the claims in the corresponding language if a further IP protection for Europe is needed. The advantage of such a qualified patent can thus also be used for the EU countries. In contrast, first applied patents e.g. in Germany usually have to be rewritten to achieve a valuable protection in the U.S. In addition, a possible U.S. application as continuation in part offers later opportunities to add more specific content to the invention. The fee for an U.S. patent application includes twenty claims with three main claims – as opposed to just ten claims, including two main claims in an EU application. After the grant of an the U.S. Patent maintenance fees have to be paid only three times, unlike the annuities at the European Patent Office. Good arguments for an effective and economical application strategy beginning in the United States.

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