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Blog | Patent: right to prohibit use, not to use (part 3) | EP&C

Patent: right to prohibit use, not to use (part 3)

Earlier I already looked at two common misconceptions about patents. Is a patent something you can easily make money from, or in fact an expensive waste of money? Neither of these is true and a good patent attorney will always protect you from these pitfalls, as well as for this third, incorrect idea: a patent gives you the right to use an invention.

It seems back to front. After all, is a patent not in fact a licence to use your product? No, a patent is the right to prohibit someone from doing something. Inventions and the patents that are filed are nearly always linked to patents belonging to others. That is why the patent on your product does not automatically give you the right to sell that product.


Here is an example: imagine a situation in which bicycles exist, but not yet bicycles with brakes. Party X has a patent on a bicycle and you develop a bicycle with brakes. Your bicycle will be an inventive step in relation to the earlier product, so you will get a patent on a bicycle with brakes.

X will then have a patent on a bicycle, and you will have a patent on a bicycle with brakes. In that case you can stop X from making a bicycle with brakes, but at the same time X can stop you from making a bicycle. Your patent therefore does not automatically give you the right to make and sell the product.

This does not mean that your bicycle with brakes will never go on sale, but that you need to reach proper agreements with the other party. You want something from them, but they are probably also interested in your product. Together you will then still have a considerable head start on lots of other products. You will therefore need to discuss your rights to ensure you can both get on with your work.

FTO study

In order to organise this properly a patent attorney will arrange an FTO study. As part of this study into freedom to operate he will conduct a thorough investigation of the rest of the market. This will then tell you which parties you are linked to. You will be able to get the most out of your product, despite, or perhaps thanks to, these links. This avoids you getting into trouble because of this third misconception about patents and you will actually be able to use your product.