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Q: When can you file for a overseas patent? Before or after a posting?

A: According to the United States Patent and Trademark Office, http://www.uspto.gov/web/offices/pac/mpep/documents/1800_1832.htm a license for foreign filing is not required to file an international application in the United States Receiving Office but may be required before the applicant or the U.S. Receiving Office can forward a copy of the international application to a foreign patent office, the International Bureau or other foreign authority ( 35 U.S.C. 368, 37 CFR 5.1 and 5.11). A foreign filing license to permit transmittal to a foreign office or international authority is not required if the international application does not disclose subject matter in addition to that disclosed in a prior U.S. national application filed more than 6 months prior to the filing of the international application ( 37 CFR 5.11(a)).

In all other instances (direct foreign filings outside the PCT or filings in a foreign receiving Office), the applicant should petition for a license for foreign filing ( 37 CFR 5.12) and if appropriate, identify any additional subject matter in the international application which was not in the earlier U.S. national application ( 37 CFR 5.14 (c)). This request and disclosure information may be supplied on the PCT international application transmittal letter, Form PTO-1382. Violation of this requirement may result in the imprisonment of any person who willfully violates the law on this matter. After filing a U.S. patent application, an inventor has a one year priority period granted by the Paris Convention of 1883 to decide where to file for foreign patents, and retain the benefit of the patent application filing date. Without the benefit of the priority period it may be too late to file a foreign patent application because of intervening sales and usage by the inventor.

It is unclear what you mean by “posting” but if the patent application is published or issued then you may not be able to file in some countries and you should contact the Law Office of Steven B. Leavitt, L.L.P. at 972-412-2671 to confidentially discuss this matter in more detail. This is just a general summary and it would be best if you discussed the issue with a registered patent attorney. Please be advised that I do not know the details of any particular situation you may have and am just discussing the general state of the law. Nothing in this response is meant as legal advice and should not be taken as such and no legal opinions or advice have been expressed. Unless otherwise noted, no attorney-client relationship exists between any attorney at the Law Office of Steven B. Leavitt and any reader of this information. If you have legal questions specific to your individual needs, then you should consult with an attorney or other qualified legal professional.