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Blog | Patent infringements | EP&C Patent Attorneys

2023-11 EP&C Blog Inbreuk op octrooirecht_2_Kolom_356x301If you are working on innovative cleantech solutions then it is important to understand how patents can protect your innovations. At the same time, of course, you want to avoid infringing an existing patent. And if you were to be accused of infringing you would like to have a specialist on your side. In each of these situations, a Patent Attorney can help you by pre-emptively gathering information about intellectual property rights in your particular sector and finding a solution in the event of a possible infringement.

Patent law infringements

A patent guarantees the intellectual property rights to an invention and thus provides the exclusive right to use that invention. So if you infringe a patent with your cleantech, you are infringing on someone else's intellectual property rights according to Jeroen Meesters, who is a Patent Attorney at EP&C. 

"Patent law is a negative right and territorially determined. This means that you can prohibit others from using, selling, manufacturing and applying your invention for commercial purposes in the countries where your product is protected. Moreover it is a combination of the scope of protection of your invention, determined by its claims in your patent, and the country or countries in which the patent applies that determines whether it is in fact possible to speak of an infringement." 

Which patent rights can you infringe in the cleantech sector? 

When it comes to protecting an invention by means of a patent there are three categories that can be protected. These are the actual product or device itself, the method used to make it plus a particular application or use of the product or device. This means that your cleantech can infringe another party's patents in all these categories.

"A product could be anything from a solar panel and batteries to wind turbines, sustainable materials and everything in between. You can also protect your process or production techniques. This could include ways to make electrical components communicate more optimally or make them more energy-efficient, for example. Finally, it is also possible to protect applications or uses, i.e. when you apply an existing product in a new way."

How to prevent infringements?

"It is important to engage a specialised Patent Attorney to assess and prevent potential infringements if necessary," Jeroen explains. Your Patent Attorney does this by pre-emptively gathering information about the intellectual property rights in your sector. 

"At EP&C, we conduct two types of searches: a novelty search and an FTO or Freedom to Operate search. In the case of a novelty search we look at whether your product, production technique or application is novel and inventive so that you can apply for a patent on it. In doing so, we focus on all available documentation, e.g. a published patent that has expired or a scientific article that has been published. 

In the case of an FTO search we gather information on the patent rights of others. In doing so, we look at whether these rights are still in force and what their scope of protection is. Does your product fall under this or not? With the aid of an FTO search we then make an assessment of whether the target market is clear for your product." 

What if you are accused of infringing a patent?

If it becomes clear from the FTO search that your product or process could possibly infringe a patent, or if you are accused of an infringement, there are several possible solutions. 
"If the search shows that you could possibly be infringing an existing patent, the first thing you need to do is to take a look at that original patent," Jeroen explains. "Is it still valid and in which countries? Does the patent actually cover your innovation?

If you are accused of infringing, it may in some cases be a good starting strategy to talk to the patent owner. If your product, process or application is an improvement on an existing patented technology, ideally you will have applied for a patent on your improvement. This will put you in a stronger negotiating position when you first approach the patent owner.
A cross-licence is often an ideal solution for both parties in cases like this. You will then give the other party a licence for your improved product and the other party will give you one for the general patent. In this way both parties can market the improved product without infringing each other's patent rights."

As an innovative company in the cleantech sector it is essential to be aware of the opportunities offered by patent protection and what you can do if you are accused of infringing a patent. It is therefore important to call in the expertise of a specialist who knows your industry. Would you like to know more about infringement? Please contact me. I would like to think along with you.