When a competitor files a patent application next to your product: what to do first
A published patent application sitting close to your product line is not yet an enforceable right. It becomes one only after grant, within whatever scope the granting office allows. Before reacting, check three things: what the claims cover, when the application was filed, and which window is already running. That order decides whether you still have options.
What the application can and cannot do yet
A pending application gives the applicant no right to stop you from making, using or selling anything. The right exists only from grant, and only for the claims that actually survive examination. Claims often narrow during prosecution, sometimes sharply, so the version published today may not be the version that eventually grants. Treat the published text as a warning sign, not as a fixed target.
If the application later proceeds to a European patent with unitary effect, it falls under Regulation (EU) No 1257/2012 and Council Regulation (EU) No 1260/2012, and its validity can afterwards be tested through a revocation action before the courts set up under the Agreement on a Unified Patent Court. That route becomes available only after grant, not while the application is still pending.
If your product already moves across borders inside the EU, a granted patent gives its holder a separate lever: a request for customs action against incoming goods under Regulation (EU) No 608/2013. That exposure sits downstream of grant, not of filing, and it is worth flagging early, because by the time goods are actually stopped at a border the options narrow considerably.
Publication timing follows the granting office's own schedule, and the interval between filing and publication varies by route. Build any monitoring watch around actual publication dates, not around assumptions about when a competitor is likely to file.
Why competitors file next to an existing product
A filing positioned close to a live product is rarely accidental. It can be built to pressure a negotiation, to block a specific feature ahead of a launch elsewhere, or simply to establish a priority date while development continues internally. None of these motives change what you need to check first: the actual claims, not the apparent intent behind them.
Intent is also difficult to prove and rarely worth pursuing on its own. Build your response around the claim comparison and the calendar, not around a theory of why the application was filed.
What changes for you right now
Filing alone does not stop your production, your sales or your own further development. It changes two things. First, it puts a marker in the public record: your freedom-to-operate position now has a named application to check against, rather than an abstract risk to guess at. Second, it starts a clock — an observation or opposition window whose length is set by the granting office's own procedural rules, not by the application itself.
A single published application rarely stands alone. Applicants often file continuations or divisional applications covering the same technology from slightly different angles, so a monitoring watch limited to one publication number misses the wider family.
Resist the instinct to react publicly. Internal notes, marketing claims and casual comments about "designing around" a competitor's filing can surface later as evidence of what you knew and when. Keep the comparison work internal until counsel has confirmed the actual claim scope.
Ownership sometimes complicates this check before validity does. If the technology described in the application overlaps with work built by someone outside your own payroll, the underlying ownership question needs answering first — see When a contractor claims ownership of the code step. A patent claim built on disputed ownership is weaker than its wording suggests.
Should you file anything yourself
Sometimes. If your own improvement is not yet protected and still qualifies as new, filing before the competitor's application publishes further can preserve your own position. Once the competitor's filing has already published, a defensive publication of your own prior use can still support a later invalidity argument, even without a fresh filing of your own. Ask your patent attorney which of the two fits your timeline before deciding either way.
What to do first
- Pull the published application and compare its claims, not its title or abstract, against your actual product feature by feature.
- Record the filing and priority dates; your patent attorney needs both to assess prior art and your own freedom to operate.
- Calendar the observation or opposition window immediately — missing it closes an option permanently, and it cannot be reopened later.
- Instruct your patent attorney to prepare third-party observations if the claims look overbroad against prior art you already hold or can locate.
- Hold internal statements and marketing language until the claim scope is confirmed; do not respond publicly to a pending filing.
- If the product already trades across EU borders, ask counsel to assess exposure under Regulation (EU) No 608/2013 in parallel with the validity check.
None of these steps requires contacting the applicant. In most cases, contact is premature until the claims are confirmed and the window is fixed.
Who decides, and by when
Three different decision-makers can become involved, depending on the stage the application has reached.
| Stage | What is available | Who decides |
|---|---|---|
| Published, still pending | Third-party observations; monitoring of claim amendments | The examining office handling the application |
| Approaching grant | Opposition, calendared within the office's own window | The granting office |
| Granted as a unitary patent | Revocation action on validity grounds | The courts under the Agreement on a Unified Patent Court |
| Granted, goods already trading in the EU | Assessment of customs enforcement exposure | Customs authorities acting under Regulation (EU) No 608/2013 |
For a classic European patent that has not opted out, the same courts under the Agreement on a Unified Patent Court can still hear a revocation action, even without a separate unitary registration. Check the register entry rather than assume which regime applies.
The examining office decides on the papers and prior art in front of it; it does not weigh your commercial position. Negotiation, design-around and licence terms stay in your hands regardless of which stage the application has reached.
If your situation is different
If the application is still unpublished in your monitoring search, the clock has not started for you yet, and the priority is watching, not reacting.
If the claims plainly do not cover your product once compared line by line, no opposition is needed; document the comparison and keep monitoring for amendments.
If your own product was on the market well before the competitor's filing date, prior use may itself limit what the eventual patent can cover — keep dated evidence of that use regardless of what happens to the application.
If the underlying technology was licensed to you through a token rather than a conventional contract, proof of that licence follows its own route — see When a token claims to carry a licence step before assuming the same evidence rules apply here.
What this page does not cover
This page does not draft opposition arguments, does not value a licence negotiation, and does not replace a claim-by-claim freedom-to-operate opinion from qualified counsel. National filing and opposition procedures vary by office; where the granting office sits outside the unitary patent system, its own procedural rules — not the acts named above — set the applicable windows and deadlines. It also does not cover settlement or cross-licensing strategy, which depends on commercial factors this page cannot see.
Sources and the limit of what is checked here
This page draws only on the acts named above, checked against their official texts. It does not draw on national patent office guidance or examiner practice, both of which sit outside this registry.
The same caution about sourcing applies outside intellectual property: when a report relies on a national registry rather than an EU act, its route and its limits should be stated just as plainly — see Counterparty in Lithuania and the deadline for how that discipline looks in a different context.
Cookie settings on this site follow the same disclosure logic; what is switched on and off by default is described separately — see Cookies and what is switched off by default step.
Checked against the official texts of Regulation (EU) No 608/2013, Regulation (EU) No 1257/2012, Council Regulation (EU) No 1260/2012 and the Agreement on a Unified Patent Court. Last checked 4 March 2025.
Related situations
A pending application and an active claim are not the same problem. If a demand letter has already arrived rather than a mere filing, the response sequence changes — see A warning letter arrives from a patent holder patent for the steps that apply once a holder has actually asserted the right.
Frequently asked questions
What is the first step when a competitor files a patent application next to your product?
Pull the published claims and compare them, clause by clause, against your actual product — not against the application's title, abstract or drawings.
Which deadline is already running?
The observation or opposition window tied to the application's current stage. Its length is set by the granting office's own procedural rules, not by a fixed EU-wide term, so it must be checked at that office rather than assumed from memory.
Who decides, and on what evidence?
At the application stage, the examining or granting office decides, on the claims and the prior art cited against them. After grant of a unitary patent, a revocation action is decided by the courts under the Agreement on a Unified Patent Court, on validity evidence submitted by the parties.