When a competitor files a patent application next to your product: what it costs to be wrong
A competitor's patent application filed close to your product does not, by itself, stop you selling anything. It does start a clock. Publication opens a window for observations, a later grant opens a window for opposition, and if the competitor seeks unitary effect, one dispute can reach across most of the EU at once. Waiting to see what happens is a choice, and it has a cost.
What is actually happening
A filed application is examined, published, and — if it clears examination — granted. At grant, the applicant chooses a route. National validation keeps the patent inside national courts, country by country. Unitary effect, under Regulation (EU) No 1257/2012, brings it under a single system with a single translation regime set out in Council Regulation (EU) No 1260/2012. Either route can later be enforced at the border under Regulation (EU) No 608/2013, which lets a rights holder apply to customs to detain goods it considers infringing.
The same uncertainty shows up in other asset classes we cover, not only patents. When source code sits on a personal account and nobody has reassigned it, the exposure looks different but the mechanism is the same: a filing or a fact sits quietly until someone acts on it.
What changes for you
If the competitor requests unitary effect after grant, the resulting patent is not a bundle of national rights. It is one right, and under the Agreement on a Unified Patent Court it is enforced and challenged in one forum. A single infringement finding there can affect sales across every participating member state at the same time. That is a materially larger exposure than a single national judgment, and it moves faster once it starts.
If the competitor validates nationally instead, the exposure is slower and split. Each country runs its own proceedings. A loss in one state does not automatically apply in another, and a settlement in one state does not bind the rest. Slower is not safer forever, but it does buy time to react state by state rather than once for all.
What to do now
- Order the file. Instruct patent counsel to pull the published application, its claims, and its search report.
- Map the overlap. Compare the claims against your product's actual technical features, not its marketing description.
- Decide on observations. If prior art undermines the claims, your patent attorney files third-party observations with the examining office before grant.
- Preserve prior use evidence. Ask your team to gather dated proof of your own use, and hand it to counsel before memories or files disappear.
- Docket the grant date. Whoever manages your IP calendar sets a reminder for the opposition window that opens at grant.
- Check the unitary route. Ask counsel whether the competitor has requested unitary effect; if so, plan for exposure under the Unified Patent Court rather than a single national court.
Who decides, and on what evidence
| Stage | Decided by | On what |
|---|---|---|
| Examination and grant | The examining patent office | Claims, prior art, applicant's submissions |
| Opposition after grant | The office's opposition body | Third-party evidence filed within the opposition period |
| National validity and infringement | National courts | National procedural rules, per state |
| Unitary patent validity and infringement | The Unified Patent Court | The Agreement on a Unified Patent Court, applied once, across participating states |
| Border seizure of goods | Customs authorities | An application for action under Regulation (EU) No 608/2013 |
If your situation is different
If the application has not yet been granted, the window for observations is still open, and it is the cheapest window you will get. If it has already been granted with unitary effect, your exposure runs through the Unified Patent Court rather than any single national court, and a single filing there can reach further than you expect. If goods have already crossed a border, ask whether an application for action under Regulation (EU) No 608/2013 has been filed against your shipments; customs can act on that application without a court judgment first.
What this page does not cover
This page does not give a view on whether the competitor's claims are actually valid, and it does not replace a technical freedom-to-operate opinion from a patent attorney. It also does not check who the competitor is as a business, which matters when a filing looks less like ordinary competition and more like pressure. Counterparty in Malta explained sets out what a due-diligence file on a counterparty can and cannot establish, and the same limits apply whenever the question moves from the patent itself to the entity behind it.
The same "what it costs to be wrong" logic runs through other files on this site outside patents. When a right is pledged on-chain explained covers a different asset class, but the pattern of a quiet filing that later becomes expensive is the same one.
Verified
Checked against Regulation (EU) No 608/2013, Regulation (EU) No 1257/2012, Council Regulation (EU) No 1260/2012, and the Agreement on a Unified Patent Court. This page describes the mechanism only; it does not assess your competitor's specific application. The people behind the reports set the methodology this page follows.
Related reading
If the letter has already arrived rather than the application still sitting quietly, the next step is different. When a warning letter arrives from a patent holder covers what changes once a rights holder contacts you directly.
Frequently asked questions
What is the first step when a competitor files a patent application next to your product?
Get the published application and its claims from patent counsel, and compare the claims against your product's actual technical features before deciding on any next step.
Which deadline is already running?
Before grant, the observation window is open for anyone with relevant prior art. After grant, an opposition period opens on the grant date, and it does not extend for being unaware of it.
Who decides, and on what evidence?
The examining office decides on grant, based on claims and prior art. After grant, a national court or the Unified Patent Court decides validity and infringement, depending on whether the patent was validated nationally or with unitary effect.