Do I have to apply for a patent on a new product?

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.

Your own patent doesn't protect you from someone else's

Another common misconception is that your product can't infringe someone else's patent if you hold a patent on it yourself. If your invention falls within the scope of their patent, you still have a problem.

Say someone has patented a car with a combustion engine, and you want to launch a car with a diesel engine. A diesel engine has real advantages, but it's still a combustion engine. You'd be infringing, and your own patent doesn't change that.

A licence can break the deadlock

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

In some cases, a patent simply isn't possible. That's true if the invention is already in the public domain, or if it's been described in detail in an expired patent. Some things can't be patented at all, like a text or a film. Patents are for technical inventions. Software sits somewhere in between: sometimes it qualifies, sometimes it doesn't.

Not sure whether to apply for a patent? Get in touch and we'll talk you through your options.