It is not often that one's vote counts, especially in geopolitics. So it struck me, in researching for another article, that filing a patent application in Ukraine could make a difference.

Per the latest World Intellectual Property Organization statistics, 516 patent applications in Ukraine originated from the U.S. in 2020.[1] That is charmingly few. In the realm of anything else international, it seems that the ante to be newsworthy is for thousands of troops, millions of people or billions of dollars to be at stake. That is certainly true for the latest news about Ukraine. So 516 of something there seems like an outlier, a manageable amount to ponder — or affect.

Consider that if a U.S. applicant had filed one more patent in Ukraine, there would be 517. It's an identifiable number, a statistically measurable difference from 516. Imagine a small company, wanting to make a difference, could file five and claim 1% of all U.S.-origin patent applications for the year sent there, a country of 44 million people.

At 516 applications, U.S. applicants filed for the most patents in Ukraine by far, except for Ukrainians themselves.[2] Less than half as many were filed by applicants ​from the next country on the list, Germany.[3] Applicants from China filed less than a hundred.[4] Thus, not only are their intellectual property assets in Ukraine measurable, but U.S. applicants form an outsized block.

Ukraine is not some patent backcountry. U.S. filers go there more than Egypt or Peru. It is squarely within the top half of foreign destinations for U.S.-origin Patent Cooperation Treaty applications.[5] Not counting those filed through the European Patent Office, Ukraine takes even more U.S.-origin PCT applications than are directly filed in Norway, Turkey or Denmark.

But why? Isn't there an armed conflict, corruption and a language barrier? The answer is that many U.S. companies have figured out business there.

After the collapse of the former Soviet Union, Ukraine evolved from the breadbasket of the Soviet Union to the breadbasket of Europe. A highly educated workforce thrives in fairly Westernized cities including Kiev and Odessa.

While these city names bring up memories of Cold War targets in classic video games, they also recall the glimmer of culture and creativity. The stairs of Odessa were featured in the 1925 silent film "Battleship Potemkin," in which a baby stroller rattles down them during a climax of accelerating cuts. The scene's groundbreaking editing is copied by Hollywood to this day.

Presently, Ukraine is in the grip of an existential struggle, whether to move to the West or cede to the East. It is in the throes of the same debate that so many other Eastern European countries considered since the end of the Cold War.

Patents in most of the world are largely utilitarian and undramatic. In some places, one files where one must.[6] In others, one files where there is promise. While filing a patent application is not an official vote for one side or another, it does reflect where a company sees opportunity. It reflects where a company envisions stable business-to-business and consumer markets, reliable courts and effective enforcement.

At the margin, filing a patent where one does not have to is like donating to a country, or at least donating to the country's intellectual and legal institutions.

Environmental, social and governance efforts of corporations often focus on issues that are relatively noncontroversial, at least to the majority of its customers and stakeholders. The "G" in the ESG equation is to lobby governments and contribute to political entities in furtherance of those efforts.

Although our government leaders cannot agree on much these days, they solidly agree on supporting an independent Ukraine. In fact, the debate is usually about how much lethal aid to send and how quickly. But ESG investments by corporations do not have to save the world all at once. They can be small grassroots decisions, made over the course of time, that reflect a company's values.

If a patent application is already prepared, such as an international PCT application, then filing in Ukraine is about $3,000, which includes local counsel fees and translation. A year or so later, another $1,300 brings it under examination.

Once a patent application is in prosecution, the Ukrainian Intellectual Property Institute takes an average of 14 months to issue a first office action.[7] Ukraine does not participate in the Patent Prosecution Highway between patent offices, yet its 105 examiners will take an international search report and written opinion into account when performing their external search and examination.

If an international PCT examiner deems a corresponding patent application allowable, or an examiner allows it in the U.S. or Europe, then examination is likely to be uneventful in Ukraine. All these costs to obtain a patent are typically tax-deductible as a business expense.

Like in most foreign countries, Ukraine's patents last for 20 years and are taxed annually. They start at $20 per year after grant and then ramp up to $300 as years progress. In any year, tax payments can be discontinued to let the patent lapse. Most, if not all, third-party annuity vendors cover Ukraine as part of their services.

It is relatively uncontroversial to support an independent Ukraine. And it is even less controversial to file a patent there. After all, there are many reasons to seek patent protection in a country with a gross domestic product of $155 billion.[8]

Given that ESG efforts often look outside the box to further a company's and shareholders' values, the idea of filing for a patent in Ukraine should be on the table. This is especially true when choosing countries in which to nationalize a PCT application at the 2.5-year, or 30-month, deadline.

Consider that it may reflect a kind of "democracy offset" from obligatory selections of less friendly countries. And unlike many ESG efforts, it may pay off financially as Ukraine modernizes its economy and integrates with Europe. This is in contrast to patents in authoritarian countries whose economies depend on fossil fuel exports.

In this era of investor focus on ESG, people understand how even small corporate decisions and sacrifices can make a difference. In considering where to nationalize a PCT application or otherwise file one's patents outside the U.S., don't forget that one can be a big player in Ukraine.

[1] WIPO IP Statistics Data Center, https://www3.wipo.int/ipstats, latest data is 2020. Of the 516 U.S. origin patent applications filed in Ukraine, 68 were direct (Paris Convention) and 448 were PCT national phase.

[2] Id., Ukrainians filed 1361 direct and PCT national phase applications in Ukraine, with foreigners submitted the rest for a total of 3,183.

[3] Id., 220 from Germany.

[4] Id., 99 from China.

[5] Id., Ukraine ranks 27th of 67 U.S.-origin PCT national phase applications in 2020, just after the United Arab Emirates.

[6] For example, about three U.S.-origin applications are filed in Syria each year.

[7] Average pendency from request for examination to the first office action is 449 days.

[8] World Bank, https://data.worldbank.org/indicator/NY.GDP.MKTP.CD?locations=UA, last visited 13 Feb. 2022.