Every now and again patent holders will accuse competitors of infringing their patent while they know that the patent in question is not actually valid, for example because the claimed innovation is not novel. In Dutch this is referred to as 'wapperen'. Making such indiscriminate claims is not without risk. If you are considering confronting a competitor with a possible infringement you should read this blog first as it may save you a lot of money.
Patents are always granted in the Netherlands
In the Netherlands, a patent application is granted automatically. If you submit a patent application for a ballpoint pen, for instance, you will receive an opinion from the Netherlands Patent Office. Needless to say, the opinion will state that the ballpoint pen is not novel and therefore not patentable. However, because we have a system in the Netherlands whereby patents are automatically granted, you will nevertheless be granted a patent.
You will then be able to put 'patented' on your ballpoint pens to emphasise exclusivity for consumers in the Netherlands. So far, so good. That is until you try to stop your competitors from selling ballpoint pens. In this case you will be 'wapperen'.
In the case of a ballpoint pen, it is obvious that the product already exists and that the patent is not valid. But that is not always the case, which is why a novelty search by the Netherlands Patent Office is an important part of any patent application.
If you knew that your innovation was not novel and subsequently confronted your competitor with your automatically granted patent, this would be referred to as unlawful 'wapperen'.
Your competitor will have to incur costs: they will need to engage a lawyer and a patent attorney to establish whether they have indeed infringed your patent. If it becomes clear that you have been making indiscriminate claims you will not only be held liable for these costs but also for the costs of the proceedings should the case go to court.
How do you avoid making indiscriminate claims?
- Together with your patent attorney, investigate the strength and thus the validity of your patent. The Netherlands Patent Office's opinion will come in handy here. However your patent attorney's analysis is even more important. This is because the Netherlands Patent Office's opinion is only a provisional one.
- If you are convinced of the strength and validity of your patent you should ask your competitor what makes them think they can they launch their innovation despite your patent before you start making indiscriminate claims of infringement. This way, you can have an open discussion, without immediately going into battle. In some cases, it will appear that your competitor was unaware of your patent. This opens up opportunities for a possible collaboration or licensing. My colleague Christiaan has listed the steps you should take in the event of suspected infringement.
In short: don't overreact, investigate the situation and talk to your competitor first. Incidentally, the opposite may also happen: you may be confronted with indiscriminate claims. This is why you should read this blog.
If you want advice on your patent or on patenting, please do not hesitate to contact me. I would be pleased to help you. You can also chat with me or one of my colleagues on working days between 2pm and 5pm. The chat function will open automatically when you go to www.epc.nl. We are ready to answer your questions.