We are frequently asked whether you always have to apply for a patent before bringing a new product to market. The answer is yes and no. As such, it is not compulsory to protect a new product with a patent. In principle everyone is free to offer and sell a product on the market, even if they do not have a patent.
Once it is on the shelves, you are too late
If you want to protect the product and it meets the criteria for patentability, then it is important to apply for the patent before it comes onto the market. Once the product is on the shelves, you are too late. The product is then in the public domain and it is no longer possible to protect it with a patent. There are still some exceptions, but you do not really want to use them.
Patenting while infringing
We also regularly come across the misconception that your own product cannot infringe someone else's patent because you have a patent on it yourself. If your invention is covered by someone else's patent, that is still a problem. Imagine that someone has patented a car with a combustion engine and you want to bring a car with a diesel engine to market. Even though a diesel engine has undeniable advantages, it is still a combustion engine. You are still infringing, so it does not help to have your own patent for the diesel engine.
A licence can be a way around the problem
In cases like this both parties could agree on a licence. Even if you have the patent on the diesel engine, you are not allowed to bring it to market it because of the other party's patent. The other party with the umbrella patent is also not allowed to bring a diesel engine to market because you have a patent on it. The way out of this stalemate is to allow each other to sell diesel engines. In that way, your own patent can help you get a licence for someone else's patent.
Patents are for technical products
Staying with the topic of compulsory patents, it is actually impossible to obtain a patent in some cases. This applies, for example, if the invention is already in the public domain or has already been meticulously described in an expired patent. And some products simply cannot be protected with a patent, such as a text or a film. Patents are only intended for technical products. In some cases software can also be patented but sometimes it cannot, but that is an interesting topic for another blog.
If you are not sure whether or not to apply for a patent, please do not hesitate to contact me. I would be happy to discuss your options with you.
