Check where an invention was made before filing abroad
Some countries restrict filing abroad based on where an invention was made, and in the US and China a mistake can cost the patent right itself.
Lesson 10 of 12 · 3 min
Most inventors think about where to sell. Few think about where the invention was made. Yet in several countries, that second question decides whether you may file abroad at all (35 USC 184; Patent Law Art. 19).
The US rule
For an invention made in the US, no one may file abroad earlier than 6 months after the US filing without a license (35 USC 184). A foreign filing license is permission from the USPTO. It normally appears on the filing receipt, or you can get one by petition (MPEP 140).
In our judgment, the usual path is easy: file in the US first, then look for the license on your filing receipt before you file anywhere else. The risk lies in the reverse order, such as sending a first application to a foreign office through a foreign partner's attorney.
The penalty
A US patent is invalid if a required license was not obtained, unless the failure was through error and no section 181 matter is involved (MPEP 140). Section 181 covers inventions subject to secrecy orders. Retroactive licenses are available on petition (37 CFR 5.25). That is a rescue, so the better move is to avoid needing it.
Teams that cross borders
The rule follows the invention, which is awkward for remote and international teams. Consider a team with engineers in the US and China. China has its own confidentiality examination for inventions completed there, and a violating filing cannot obtain a Chinese patent (Patent Law Art. 19). Its test looks at where the substance was completed, not at anyone's nationality, according to one law firm (Lee and Li).
In our judgment, the practical habit is to write down, early, who contributed what and from where. When work happened in more than one country, the order of filings needs a professional's review, because rules can pull in different directions.
An illustrative list
The Current section gives examples of national rules. It is illustrative only, because we found no authoritative global list. If an inventor worked anywhere else, check that country's rule before you file abroad.
Timeless wisdom
For an invention made in the US, no one may file abroad earlier than 6 months after US filing without a license (35 USC 184). A license normally appears on the filing receipt or comes by petition, and a US patent is invalid if a required license was not obtained, unless the failure was through error and no section 181 matter is involved (MPEP 140). Retroactive licenses are available on petition (37 CFR 5.25). The durable principle is to ask where the invention was made before you ask where to file.
What's current
As of November 6, 2026
This list is illustrative, not complete.
- China requires confidentiality examination for inventions and utility models completed in China (Patent Law Art. 19).
- Japan, since May 1, 2024, bars filing abroad first for unpublished inventions made in Japan that would fall under security review, limited to designated fields (JPO Q&A).
- The UK restricts only military or security-sensitive applications (UK IPO Manual).
AI tools can create export problems that a foreign filing license does not solve (89 FR 25609). Our reading of China's current rule text came through commentary and older wording, so confirm it before relying on it.
Key takeaways
- Ask where the invention was made before you ask where to file.
- For a US-made invention, look for the license on your filing receipt before filing abroad.
- In the US and China, a violation can cost the patent right itself.
- Cross-border teams should record who contributed what and from where.
Check your understanding
Sources
- 35 USC 184, filing in a foreign country
- MPEP 140, foreign filing licenses
- 37 CFR 5.25, petition for retroactive license
- Patent Law of China, CNIPA translation
- Lee and Li on China's confidentiality examination
- JPO Q&A on the patent non-disclosure system
- UK IPO Manual of Patent Practice, section 23
- 89 FR 25609
The Academy is general education, not legal advice, and reading it doesn't create an attorney-client relationship. Patent law and fees change, so check the linked sources and have a registered patent attorney or agent review your situation before you file. Obsidyan sells patent software, including AI drafting tools, so weigh what these lessons say about AI tools with that in mind.