Hydrogen-powered means of transport not always protected by patents

Hydrogen is an excellent energy carrier for heavy means of transport. Consequently, there is plenty of innovation going on in this field. This includes hydrogen solutions for ships, trucks and even aircraft. These inventions are often protected with a patent. This is a sensible step to take but one that you have to think through carefully as patent law does include some exceptions for vehicles. This can have an impact on your protection strategy, especially when it comes to the choice of country.

Specifically this exception means that a Dutch patent does not apply if the following conditions are in place:

• The patented invention is part of the construction or propulsion of the means of transport.
• The means of transport comes from a country other than the Netherlands and is registered there (by means of a registration number or flag, for instance).
• The means of transport is in the Netherlands temporarily or by chance.
  
  

For example, a ship from Germany runs on hydrogen and transports goods between Germany and the Netherlands. Suppose this ship's fuel cell is patented in the Netherlands. Then this German ship will not be infringing because it has the three conditions in place. So the ship will fall under the exception.

Why?

1. The fuel cell is part of the ship's propulsion, because it cannot sail without it.
2. The ship is sailing under the German flag.
3. The ship is only here temporarily. 

With only a Dutch patent, you cannot challenge this ship for infringement.

From 1883 but still relevant today

Here is a quick history lesson to understand where these exceptions have come from. Let's go back to the 1883 Paris Convention. The aim back then was to prevent a situation in which vehicles (especially ships) that use patented technologies become unusable as a result of patents in different countries. A ship should be able to sail from country to country without the risk of being arrested somewhere because the engine is patented, for instance. This would restrict international trade which is why several exceptions are enshrined in both Dutch patent law and the laws in countries around us. Back then, it might have involved innovative sails or steam engines. Now it is about fuel cells and filling nipples, for instance.

Think strategically

So what can you do to protect your invention? This requires some strategic thinking about where your products are made or registered. If you want to patent the propulsion technology of hydrogen vehicles it might be wise to file a patent application in the countries where those vehicles are manufactured and/or where the users of those vehicles are located.
In the above example, a German patent will allow you to challenge the ship. After all, the ship is sailing under the German flag and is therefore not covered by the exception in Germany.

Grey area

The 1883 rules were clearly not conceived with hydrogen technology in mind and are far from satisfactory in all situations. For example, what do you do with a hydrogen tanker that has two tanks? One for its own fuel cell and one to transport hydrogen. In this particular case the first tank will fall under the exception because the hydrogen is used to propel the vessel. However the same does not apply to the second tank. Does one of the tanks infringe the patent on the tank in this case? It gets even more complicated when the hydrogen tanker has a large tank from which it uses some of the hydrogen itself and transports the rest. Is this an infringement?

Anyone who thinks that they can make use of the exception with clever tricks will have a rude awakening. Judges will always consider reasonableness and fairness. They will not turn a blind eye, for example, to a company that exists in Germany purely on paper and in fact only operates in the Netherlands.

Advice to innovators in the hydrogen industry

My advice when innovating in the field of means of transport in the hydrogen industry is not to count your chickens before they hatch when it comes to a Dutch patent for a technology related to transportation of the actual means of transport itself. For example, on the fuel cell, storage tanks, filling nipples or internal pumps and compressors. For vehicles that cross international borders it is especially advisable to check where they are manufactured and under which flag or registration number they sail, drive or fly. Discuss it with an expert. A patent attorney can tell you exactly what a smart move for your innovation would be.