Legal Considerations on a Global Scale
Export Regulations
Export and re-export of products for national security, nonproliferation, foreign policy, and short supply are governed by the Export Administration Regulations (EAR). Only a tiny fraction of exports and re-exports require a license application to the Bureau of Industry and Security of the United States Department of Commerce (BIS). The technical attributes of an object, its destination, final use, and end-user all influence licensing. Once a classification has been established, exporters can utilize the EAR's single chart to determine if a license is required to export to a certain nation. The regulations offer answers to frequently asked questions and detailed step-by-step directions for assessing whether a transaction is subject to the rules, seeking a commodity classification or advisory opinion, and applying for a license. Contact your local U.S. Commercial Service office if you have any queries regarding whether your items require a license.
Antidiversion Clause
The U.S. government requires a destination control statement on shipping papers to guarantee that U.S. exports only travel to legally approved destinations. Almost all commercial invoices and bills of lading (or air waybills) leaving the United States must include a statement informing the carrier and all foreign parties (the ultimate and intermediate consignees, as well as the purchaser) that the material from the United States has been approved for export only to specific destinations and may not be diverted. Administration Regulations" reads the minimum anti-diversion declaration for products exported under U.S. Department of Commerce permission. It is illegal to divert funds in violation of U.S. law." The U.S. Department of Commerce, an attorney, or the freight forwarder can all advise which statement to use.
Antiboycott Regulations
The United State has a long-standing policy of opposing restrictive trade policies or boycotts promoted or implemented by foreign governments against countries favorable to the U.S. The Export Administration Act's antiboycott measures are used to carry out this goal (enforced by the U.S. Department of Commerce)
In general, these rules make it illegal for Americans to participate in international boycotts or to take activities that promote or advance boycotts. The antiboycott rules achieve this broad goal by:
- Making it illegal for U.S. agencies or individuals to refuse to do business with blocked firms or boycotted friendly nations in response to foreign boycott demands.
- Prohibiting citizens of the United States from disclosing information about their economic dealings with boycotted friendly foreign governments or blocked corporations in response to boycott demands.
- Allowing demands to cooperate with international boycotts to be made public.
- Requiring individuals in the United States who receive requests to comply with international boycotts to report the requests to the U.S. Department of Commerce and publicly declare whether they have complied.
Foreign Corrupt Practices Act
It is prohibited for a U.S. individual or corporation to donate, pay, or threaten to pay money to any foreign official to obtain or maintain the business under the Foreign Corrupt Practices Act authorization of any such payment or promise is also forbidden. The ideas of intentional indifference and purposeful blindness are included in the concept of "knowing." Foreign people or businesses who perform activities supporting bribery in the United States are likewise covered by the FCPA. When confronted with FCPA difficulties, U.S. people or corporations and covered foreign persons or companies should seek legal advice.
Visit usdoj.gov/criminal/fraud/fcpa for additional information on the FCPA and the FCPA Opinion Procedure from the U.S. Department of Justice.
Although the FCPA has no enforcement jurisdiction under the U.S. Department of Commerce, it provides basic assistance to U.S. exporters with queries regarding the law and international events related to it.
Import Regulations of Foreign Governments
The criteria for import documentation and other laws imposed by foreign governments differ from one nation to the next. Many countries, for example, need consular invoices, inspection certificates, health certifications, and other documentation for information on import regulations imposed by foreign governments. Large U.S. freight forwarding businesses (and their websites) may also give information on the documentation required for various nations.
North American Free Trade Agreement
The Agreement On Tariffs And Trade (NAFTA) was signed by the United States, Mexico, and Canada. Get in touch with your local U.S. Commercial Service office for further information on all elements of NAFTA.
Only commodities that originate in one of the four methods described in Article 401 of the agreement shall be exempt from tariffs:
- Unassembled items and goods with a NAFTA regional value of 60% according to the transaction value method or 50% according to the net-cost method but do not fulfill the Annex 401 rule of origin.
- Goods that comply with an Annex 401 origin requirement.
- Goods made solely in the NAFTA region, using only locally sourced materials.
- Unassembled commodities and items whose content does not match the Annex 401 rule of origin but has a 60 percent transaction value or 50 percent regional value under NAFTA.
Importers must base their claims of the nation of origin on the exporters' written certificates of origin, which can be the United States-approved certificate of origin (CF 434), the Canadian certificate of origin, or the Mexican certificate of origin, according to Article 502 of the NAFTA (Certificado de Origen). The certificate can be used to cover a single shipment or as a blanket declaration for 12 months.
U.S. Foreign-Trade Zones
As an exporter, you should think about the advantages of the custom of U.S. foreign trade zones (FTZs). These zones are domestic U.S. locations deemed outside of the U.S. Customs area and can be used for operations that would normally have to be carried out overseas due to customs issues. The zones give expedited export status for excise tax refunds for export activities. There is no issue with a drawback because tariffs are not collected when items are in the FTZ. FTZs might be advantageous for enterprises requiring the assembly or production of foreign dutiable materials and components for re-export. Furthermore, export activity is usually exempt from quota constraints.
More than 200 FTZs were granted in municipalities around the United States. Storage, repacking, inspection, display, assembly, production, and other processing operations are all possible with these facilities. The total value of goods handled by FTZs is more than $640 billion. Additional information is available at 1.usa.gov/1zucnDd.
The zone manager, local U.S. Commercial Service offices and the Foreign-Trade Zones Board can all provide information on the zones. More information may be found at ia.ita.doc.gov/ftzpage.
Export Processing Zones
Countries all around the globe have developed export processing zones (EPZs) of various sorts to stimulate and expedite international commerce, including free trade zones, special economic zones, bonded warehouses, free ports, and customs zones. EPZs have grown to include high-tech and scientific parks, economic zones, logistical centers, and even vacation resorts, in addition to basic assembly and simple processing operations. They now contain single-industry and single-commodity zones in addition to general-type zones. The number of EPZs, as well as the nations that host them, has grown quickly. There are already over 600 EPZs spread over more than 100 nations. Many U.S. manufacturers and distributors use these zones to receive goods that are then reshipped in smaller numbers to clients in the surrounding areas. Contact your local U.S. Commercial Service office for additional information.
Customs-Bonded Warehouses
A customs bonded warehouse is a structure or other protected facility where dutiable commodities can be stored, manipulated, or manufactured without paying duty.
When products enter a bonded warehouse, both the importer and the warehouse owner are exposed to financial and legal risks. Therefore, the duty is canceled if the products fulfill the following criteria:
- This item has been exported.
- Withdrawn for foreign travel supplies to a vessel or aircraft
- Damaged under US Customs and Border Protection's oversight
- Withdrawn for domestic consumption after payment of duty
Using a bonded warehouse might provide your firm with several benefits. Until the merchandise is removed for consumption, no duty is collected. The use of money by an importer is restricted until the duty is paid when the goods are removed from the bonded warehouse. If no local buyer can be found for the imported goods, the importing business can sell the goods for export, removing the importer's duty obligation.
- A bonded warehouse may hold many products that are subject to quotas or other limitations.
- Before depositing such items in a bonded warehouse, check with the local U.S. Customs and Border Protection office.
- Duties due on altered products are calculated at the moment of removal from the bonded storage.
Intellectual Property Considerations
I.P. refers to a broad range of rights about works of authorship, which are protected under copyright law; innovations, which are protected under patent law; marks, which are protected under trademark law; and designs and trade secrets, which are protected under trade secret law. There is no comprehensive international treaty that specifies various categories of intellectual property, and country laws range significantly. National intellectual property laws establish, affirm, or govern a property right that prevents others from using or copying a trade secret, a phrase, a design, or a product, including its mark and packaging, without permission.
A patent, trademark registration, copyright, or mask work (design of a semiconductor chip) registration only gives you rights in the United States and its territories and possessions. In a foreign nation, they offer no protection to your company's goods. A worldwide patent, trademark, or copyright does not exist. To protect patent or mask rights in any nation, you must file a patent application or register the mask work there. While most nations need trademark registration to ensure protection, some provide rights based on the precedence of use in that country. National laws govern copyright protection. However, registration is usually not necessary. There is no practical shortcut to global intellectual property protection. However, treaties or other international agreements do provide some benefits and basic criteria for the protection and enforcement of intellectual property.
International Agreements
The Paris Treaty Protection of Industrial Property is the earliest convention dealing with patents, and other forms of intellectual property, and unfair competition. This pact was signed by the United States and more than 160 other countries. The Paris Convention establishes minimal protection criteria and provides two major benefits: national treatment and priority.
In general, national treatment under the Paris Convention implies that a signatory country will not discriminate in providing patent or trademark protection to nationals of other signatory countries. The rights offered by a foreign nation may be higher or lesser than those guaranteed under U.S. law, but they will be the same as those provided to the country's residents.
The right of priority provided by the Paris Convention is a well-known alternative to concurrently filing applications in multiple countries. It gives the applicant one year from the date of the initial application submitted in a Paris Convention nation to file in additional countries (6 months for a design or trademark). This implies that after the initial filing, neither publication nor sale of an invention, nor the use of a trademark, would risk patentability in nations that provide U.S. applicants a right of priority, as long as their application is filed before the priority period expires.
Although not all nations have signed the Paris Convention, other treaties or bilateral agreements may provide equivalent advantages. For example, these substantive duties are enshrined in the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and bind WTO members.
The US is also a member of the Patent Cooperation Treaty (PCT), which governs the filing of patent applications in its member nations.
The period in which you can meet the national criteria for each country is extended by 18 months if you file an international application.
International Copyright Law
The US is also a signatory to the Universal Copyright Convention (UCC) and has specific bilateral ties with several other nations. Works made by a national of a Bern Union country, or works first or concurrently published in a Bern country, are immediately eligible for protection in all other Bern Union countries, without the need for registration or any other legal formality. These restrictions apply to works published in the United States for the first time. The UCC protected works that were initially published in multiple nations. Older works may also be protected by simultaneous publication in a Bern nation or by bilateral commitments. Because the regulations and protection differ from nation to country, you should research them before submitting your work anyplace.
NAFTA and Agreement on Trade-Related Aspects of Intellectual Property Rights
Both NAFTA and TRIPs define basic criteria for intellectual property protection and the enforcement of those norms. Neither agreement grants rights to intellectual property owners in the United States. Rather, both accords guarantee that a member state that is a signatory to one or both of the agreements offers a specific degree of protection to persons or businesses protected by that member state's laws. Similar safeguards are included in other free trade agreements, including the United States, which is another incentive to include FTA nations in your export strategy.
Intellectual Property Rights (IP)
The questions and answers that follow are mainly based on information prepared by the World Intellectual Property Organization and are often verbatim (WIPO, wipo.int). The last collection of questions and answers covers how to file a patent application in the United States, how to file a trademark under the Madrid Protocol, and how to find further training materials. You should get qualified legal assistance since this is a complicated and fast-evolving area of law.
What exactly is a patent?
A patent is an exclusive right awarded for an invention, which is a product or a technique that gives a new technological solution to a problem or provides a new way of doing something in general. To be patentable, an invention must meet specific criteria, which are stated below under "What sorts of innovations can be protected?"
What is the purpose of a patent?
A patent gives the patent owner protection for his or her innovation. The protection is only provided for a set amount of time, usually 20 years.
What type of security does a patent provide?
Without the permission of the patent owner, the innovation cannot be commercially manufactured, utilized, distributed, or sold. These patent rights are normally enforced in a court, which has the ability to stop patent infringement in most jurisdictions. A court can also declare a patent invalid if a third party successfully challenges it.
What are the rights of a patent holder?
For the duration of the patent's protection, the patent owner has the authority to decide who may or may not utilize the patented innovation. Other parties may be granted permission or granted a license to exploit the innovation on mutually agreed conditions by the patent owner. The owner of the patent may potentially sell the right to the invention to someone else, who will then become the patent's new owner. After a patent has expired, the innovation enters the public domain, which means that the owner no longer has exclusive rights to the invention, which becomes open for commercial use to others.
Why are patents required?
Individuals benefit from patents because they receive both praises for their inventiveness and monetary compensation for their commercially viable ideas. These incentives foster innovation, which helps to improve the quality of human existence in the long run.
How important is patent in everyday life?
Every element of life is influenced by patented innovations. Electric lights (owned by Edison and Swan) and plastic (held by Baekeland) are among the patented inventions, as are ballpoint pens (held by Biro) and microprocessors (held by multiple corporations, including Intel and Advanced Micro Devices).
In exchange for patent protection, all patent owners must publicly reveal information about their innovation in order to contribute to the world's complete body of technical knowledge.
The growing corpus of public information, in turn, encourages more creativity and innovation, among other things. Patents thus give not just protection to their owners, but also important knowledge and inspiration to future generations of researchers and inventors.
What is the procedure for obtaining a patent?
The submission of a patent application is the first step in obtaining a patent. This document, which typically includes the invention's title and a description of the invention written in clear language and with enough detail to allow someone with a basic understanding of the field to use or reproduce the invention, includes the background and a description of the invention written in clear language and with enough detail to allow someone with a basic understanding of the field to use or reproduce the invention. To properly convey the innovation, such statements are frequently supported with visual resources such as drawings, blueprints, or diagrams. The application also includes many claims, which are details that define the scope of the patent's protection.
What kind of innovations is eligible for protection?
An invention must be of practical value and demonstrate an element of novelty—some unique trait not known in the corpus of existing knowledge in its technical field—in order to be patentable. (This corpus of information is referred to as previous art.) The innovation must demonstrate an innovative step (one that could not be determined by someone with average technical understanding). Finally, the subject matter must be legally recognized as "patentable." Scientific ideas, mathematical techniques, plant or animal types, natural substance discoveries, commercial procedures, or medical treatment methods (as opposed to medical goods) are typically not patentable in many nations.
Somebody decides who gets a patent?
A patent is awarded by a national patent office or a regional patent agency that works on behalf of many nations, such as the European Patent Office (EPO) or the African Regional Intellectual Property Organization (ARIPO). In such regional systems, an applicant seeks patent protection in one or more nations, with each country deciding whether or not to provide patent protection inside its boundaries. The Patent Cooperation Treaty, which is maintained by WIPO, allows for the submission of a single worldwide patent application that has the same impact as national patent applications submitted in the designated nations. An applicant for protection can submit a single application and request protection from as many signature governments as they require.
How can you get a patent all around the world?
There are currently no global or international patents. In general, each country in which you seek patent protection for your innovation must submit a patent application, and a patent will be awarded and enforced in accordance with its national legislation. In certain regions, a regional patent office (such as the EPO or ARIPO) accepts regional patent applications or issues patents that are equivalent to those filed or issued in the member nations of that region. Furthermore, any resident or citizen of a PCT contracting state may file a PCT international application. A single international patent application has the same impact as national patent applications submitted in each of the treaty's specified signatory states. However, in order to acquire patent protection in the designated nations under the PCT system, each designated state must award a patent to the claimed invention contained in the worldwide application. There is more information on the PCT accessible.
The procedural and substantive conditions for patent grant, as well as the fees that must be paid, varied from one nation or area to the next. As a result, it is suggested that you get advice from a professional intellectual property lawyer or the IP offices of the nations where you wish to seek protection.
Where can I get information about patents?
Some national or regional patent offices provide free electronic databases through the Internet to aid consumers in finding patent applications and awarded patents. WIPO provides a list of URLs for such databases, as well as picture access to a comprehensive electronic database containing published international patent applications submitted under the PCT system from 1978 to the current day. WIPO now makes the text of descriptions and claims for PCT International Applications filed since July 1998 freely searchable.
Patent information can be accessible in paper papers, microfilms or CD-ROMs, or at national or regional patent offices if web-based databases are not available. Patent information is now much easier to find because to searchable Internet patent databases. Given the intricacy of patent papers and the technical and legal skills necessary to use them, a professional patent attorney should be contacted to conduct a thorough patent search.
WIPO Patent Information Services (WPIS) is a free service provided by WIPO for customers in developing countries who want technical search results for their innovations.
Where can I obtain information on patent laws in different countries?
The Collection of Laws for Electronic Access (CLEA) makes intellectual property legislation from a variety of nations and areas, as well as WIPO-administered treaties on intellectual property, easily accessible. On their websites, several national and regional patent offices give information on national and regional legislation. The World Intellectual Property Organization (WIPO) provides a list of national and regional intellectual property offices' URLs.
Is it possible to get a patent for a software invention?
Patent award procedures and substantive requirements vary from one nation or area to the next. Practices and case law regulating the patentability of software-related innovations, in particular, differ greatly between nations. For example, in certain nations, patentable innovations must have a technical character, and software is not regarded as a patented invention; while, in other countries, such criteria do not exist, and software is frequently patentable subject matter. As a result, you should get advice from a professional intellectual property lawyer or the IP offices of the nations where you desire to seek protection. The World Intellectual Property Organization (WIPO) provides a list of URLs as well as a directory of national and regional intellectual property offices. Computer programs, on the other hand, maybe protected by copyright. However, copyright protection only applies to phrases, not ideas, procedures, methods of operation, or mathematical concepts in general, according to a well-established principle.
Can I talk to a potential investor about the details of my innovation before submitting a patent application?
Before you publicly publish the specifics of your innovation, you should submit a patent application.
In general, any innovation made public prior to the filing of an application is deemed prior art. (Although the worldwide meaning of this phrase is not uniform, in many nations, it refers to any information that has been made available to the public anywhere in the globe, whether by written or oral disclosure.) The applicant's public publication of the invention prior to submitting a patent application would bar him or her from getting a valid patent for that invention in nations that follow the aforementioned definition of prior art, because the novelty criterion would not have been fulfilled. However, some nations provide for a grace period, which protects applicants who publicly revealed their innovations before submitting a patent application, and the novelty criteria might be construed differently depending on the local law.
If you need to reveal your idea to a possible investor or business partner before submitting a patent application, for example, you should do so with a secrecy agreement.
What is the procedure for filing in the United States?
The US Patent and Trademark Office accepts patent applications and supporting documents online. Visit 1.usa.gov/10PdLXk to get started.
Is it possible to protect my trademark in many countries at the same time?
Yes, the Madrid Protocol allows you to seek for protection in numerous signatory nations by making a single application and paying a single charge in a single national currency. Visit 1.usa.gov/1zsCqPD for more information on the Madrid Protocol and how to submit it.
What resources are available to help me learn more about international intellectual property law?
The Global Intellectual Property Academy offers multilateral and country-specific training programs. Visit uspto.gov/ip/training for additional information.
How long does it take for a patent to be issued?
In the United States, the wait time is around 36 months. Officials from the government have acknowledged that this amount of time is unacceptable, and they are working to change the process and cut wait times.
Inventors must make do with a patent-pending status in the meanwhile.
If I believe my intellectual property has been stolen, how can I make a complaint?
A number of government entities in the United States have teamed up to investigate and prosecute IP theft.
Visit www.stopfakes.gov for additional information.