Introductory example
Entrepreneur A has founded a start-up that has developed a new type of smart textile: a high-tech fabric that automatically regulates temperature and moisture and is mainly used in the sports and outdoor sectors. Demand is high because athletes and extreme sports enthusiasts place particular value on performance-enhancing materials.
Its main sales markets are the US and Europe, where customers are affluent and prefer branded products with patented technology. Production currently takes place mainly in Bulgaria and Poland because manufacturing costs are low there. However, production could be relocated relatively easily to other countries with low labor costs, such as Vietnam, meaning that patent protection in the country of production alone would not be sufficient.
The annual Outdoor Trade Show in the USA, which is considered the most important platform for presenting new sports and functional clothing, is also of particular importance. Manufacturers from all over the world gain visibility here; many contracts with international retailers are concluded there.
A central principle of patenting is the territoriality principle. This means that patent protection only exists in countries where a patent has actually been applied for and granted. A patent is therefore only valid in the country that granted it. The background to this principle lies in the enforceability of rights: the enforcement of a patent requires state support, as the courts or authorities of the respective country must confirm and enforce the rights of the patent holder. Without this state support, the patent remains merely a piece of paper with no actual effect.
If entrepreneur A only has patent protection in Germany, this protects him exclusively in Germany. If a competitor sells his smart textiles in the US or has them produced in Bulgaria without a patent existing there, A cannot take any legal action against this. Only with a US patent could he, for example, prevent the marketing of patent-infringing smart textiles in the US.
However, the selection of countries is not based on legal restrictions, as patents can be obtained in almost all countries of the world, but on financial considerations. The costs of patent applications in different countries quickly add up to several thousand euros per country. These include official fees, lawyers' fees, and translation costs, which are mandatory in many countries. Therefore, strategic consideration must be given to how to achieve optimal protection against imitation with as few patents as possible.
If A wants to protect its smart textile worldwide and applies for patents in around 100 countries, this would incur enormous costs. Even with a conservative estimate of around EUR 10,000 per country, the total cost of worldwide patent protection would amount to approximately EUR 1,000,000 – and that does not even take into account the subsequent annual and maintenance fees. This makes it clear that global patent protection is hardly economically viable. A must therefore strategically weigh up in which markets or production countries patent protection will be most beneficial.
A common strategy for selecting countries for patent applications is to protect buyer markets. Patents protect not only the manufacture of a product, but also its marketing and importation into a country. Therefore, it may be more cost-effective to apply for patents in the countries where the product is sold rather than in every country where it is manufactured.
If A's product could only be marketed effectively in a core country such as the US, it would make sense to concentrate patent protection on this buyer market and thus achieve a strong protective effect with comparatively few applications. In the case of A's smart textile, however, the market is global: customers are not only found in the US or Europe, but also in Asia, Australia, and Latin America. This means that a pure buyer's market strategy loses its effectiveness, as distribution takes place worldwide and imitators on every continent can potentially become dangerous. For A, this means that it cannot limit protection to the end markets alone.
In industries with few manufacturers or countries where production is concentrated, it may make sense to protect the manufacturing countries with patents. If competitors cannot easily change their production locations, patent protection in the countries of the most important competitors offers an effective way to prevent imitations. For companies whose production structures are difficult to relocate, patents in the manufacturing countries can be a cost-effective method of preventing competitors from imitating them without having to apply for patents in many sales markets.
In the textile industry, this strategy is only of limited use because production facilities are very flexible and can be relocated quickly. Even if A registers its patents in countries such as Poland or Bulgaria, where most of its own production currently takes place, competitors could relocate their manufacturing to other low-wage countries without any major obstacles. This would quickly undermine the protection, and the effect of such patents would remain minimal. For A, this means that protection in traditional manufacturing countries in the industry does not constitute a reliable barrier against imitations.
Another strategy is to identify markets with particular relevance for competition. In some industries, such as the luxury goods market, there are trade fairs or events where new products are presented. These events are of central importance for market participants to showcase their products worldwide.
In the case of A, a leading international trade fair in the US plays a major role, but it must be borne in mind that the distribution of its innovative textiles is no longer exclusively through such events. Especially in the Internet age, retailers and end customers can also order directly online, which means that market access is sometimes bypassing the trade fair. Nevertheless, the trade fair can remain strategically relevant in the high-price segment because many large retailers and brand manufacturers make their purchasing decisions there and examine new products. For A, a patent in the US could therefore be doubly advantageous: on the one hand, it protects the sales market itself, and on the other, it prevents competitors from showing up at the leading trade fair and copying its product in a way that attracts public attention.
In the case of highly standardized products that are manufactured and distributed worldwide in the same or very similar form, it is often not necessary to apply for patent protection in every single country. Since the products are internationally standardized and hardly ever adapted to local markets, it is often sufficient to cover the central sales or production markets with patents. If patent protection exists in these key markets, it becomes unattractive or economically impractical for imitators to use the technology only in smaller or peripheral markets. The logistical effort involved in organizing separate production chains or serving alternative markets usually exceeds the potential profit. With just a few strategically placed patents, it is therefore possible to create a global protective shield that effectively hinders imitations.
Suppose A develops a key component for automotive manufacturing, such as a new type of battery management system that could be used as standard in all vehicles worldwide. In this case, it would be sufficient for A to secure patents in the most important automotive markets such as Germany, the US, China, and Japan. Since the automotive industry has highly standardized approval procedures and markets its models in large quantities worldwide, it would hardly be lucrative for competitors to use the technology only in smaller markets. A distribution system that focuses exclusively on countries without patent protection would become too complicated and uneconomical.
The situation is different for textiles, however: here, markets are more fragmented, production is very flexible, and standards are less uniform internationally. Even if A had a patent on a specific fiber technology, competitors could more easily circumvent the property rights by manufacturing in other production countries or specifically supplying markets without patent protection. Therefore, this “core country strategy” is less effective in the textile industry than in the automotive industry, for example.
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die am 19.8.2025 abgelaufen ist.
die über dasselbe Prioritätsrecht miteinander verbunden sind
New inventions in the priority year
praktische Situation während des Prioritätsjahres ist die Weiterentwicklung der Erfindung. Dies wirft die Frage auf
Austrian entrepreneur A files his first invention in January 2025 – a particularly lightweight carbon fiber for sports equipment. In April 2025, he develops a second invention based on this, namely a special braided structure that makes the fiber even more stable, and also submits an application for this to the Austrian Patent Office. Finally, in September 2025, a third application follows: a resin coating that makes the carbon fibers water-repellent and extends their service life.
In December 2025, A decides to file a subsequent application claiming all three inventions together. Patent claim 1 claims the carbon fiber. Patent claim 2 claims the combination of carbon fiber and braided structure, and patent claim 3 claims the combination of carbon fiber and resin coating.
He asserts three priorities for the applications: Patent claim 1 for the carbon fiber has a filing date in January, patent claim 2 concerning the special braided structure has a filing date in April, and patent claim 3 concerning the resin coating of the carbon fiber has a filing date in September.
Each invention is therefore “backdated” to the date on which it was first filed with the patent office. This means that the state of the art at the time of the respective first application is decisive for the novelty and inventive step. It is therefore possible that individual patent claims in the same subsequent application may have different priority dates.
dass jede Zusatzerfindung
steht ein Stand der Technik aus dem Februar einem Patentanspruch 2 entgegen
Priority right and prior rights
dass ältere Rechte grundsätzlich nur diejenigen Patente und Anmeldungen sind
A files a subsequent application in Germany in December 2025 based on his Austrian patent application filed in January 2025. In June 2025, a German applicant D files a patent application in Germany for the same invention without claiming priority. Both applications are published.
Looking at the validity of A's application in this situation, it can be seen that D's application has the effect of prior art (earlier right) from its filing date in June 2025. However, due to the priority right, A's application has a better priority date in January 2025, so that D's application cannot be prior art for A's application.
Looking at the validity of D's application in this situation, it becomes apparent that the prior art for this application is to be taken from the filing date in June 2025. Even though A's application was not filed with the German Patent Office until December 2025, the priority right also dates the application back to January 2025 with its prior art effects, so that A's application constitutes an earlier right for D's application.
wie sich die Situation darstellt
A submits a subsequent application in Germany in December 2025 based on his Austrian patent application filed in January 2025. In February 2025, another applicant, D, submits a patent application in Spain for the same invention. In November 2025, he submits a subsequent German application based on his Spanish patent application.
Looking at the validity of A's application in this situation, it can be seen that D's application has the effect of prior art (earlier right) from its Spanish priority date in February 2025. However, due to the priority right, A's application has a better priority date in January 2025, so that D's application cannot be prior art for A's application.
Looking at the validity of D's application in this situation, it becomes apparent that the prior art for this application is to be taken from the priority date of February 2025. Even though A's application was not filed with the German Patent Office until December 2025, the priority right dates the application and its prior art effects back to January 2025 (i.e., before February 2025), so that A's application constitutes an earlier right for D's application.
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