Great news! You have a patent on your invention, so you’re all set. Unfortunately, that’s not quite true. You may still have to deal with someone else’s patent, even if you already have a patent on your product.
That’s because your innovation is often an improvement on something else. If so, you may face a dominant patent: the patent on the original innovation.
Balance bike versus pedal bike
Let me explain with the most Dutch product there is: the bicycle.
Suppose inventor A invented the world’s first bicycle: one you sit on and push forward with your feet. In other words, a balance bike. The patent claim might read: a means of transport with two wheels, a handlebar, a brake and a saddle. The patent could stay in force for up to 20 years.
Then inventor B found pushing along with your feet tiring. They added pedals and a chain to drive the bike. Naturally, they applied for a patent on this pedal bike. Their claim might read: a means of transport with two wheels, a handlebar, a brake, a saddle and a pedal mechanism.
So inventor B’s bike has every feature in inventor A’s claim. In other words, the pedal bike is an improvement on the balance bike and falls within the scope of inventor A’s patent.
Stalemate
In this case, inventor A has a dominant patent. In theory, inventor A could stop the pedal bike from entering the market. But inventor A can’t sell pedal bikes either, because inventor B’s patent covers them.
This leaves both patent holders in stalemate. Either they block each other, or they reach an agreement. An agreement is often a win-win. If customers want the improved version, they are usually willing to pay more for it.
So the dominant patent holder and the improver often strike a deal in which each licenses the other, sometimes with a payment. This is called a cross-licence.
Advice
If your engineers build on an existing invention, they should know there may be a dominant patent. Consider your relationship with the patent holder, and where each of you operates.
Spotting problem patents early is key. Innovation takes a lot of investment, so be thorough and proceed with care.
Want to know whether you risk infringing a patent, or whether you own a dominant one? Feel free to contact us.
