When a rival launches an obvious workaround: what to do first
An obvious workaround is not automatically lawful. Compare the rival's product against every granted claim before you react, and preserve proof of the launch date. If the underlying patent is a Unitary Patent, the case belongs before the Unified Patent Court under the Agreement on a Unified Patent Court, and public commentary before that assessment is the single costliest mistake.
Basis
Where the patent in dispute is a Unitary Patent under Regulation (EU) No 1257/2012, its unitary effect and the applicable translation regime sit with Council Regulation (EU) No 1260/2012, and disputes over infringement and validity are decided by the court created under the Agreement on a Unified Patent Court. Where the rival's goods physically cross an EU border, a separate track opens under Regulation (EU) No 608/2013, which lets customs authorities detain suspect consignments on request. These regimes answer different questions, and they can run in parallel rather than as substitutes for each other.
What changes in practice
An obvious workaround shifts the burden of analysis onto you, not onto the rival. No forum presumes a redesign is non-infringing; the comparison runs against the same claim language your patent already carries. If the rival's product performs the same function through a trivially different means, an infringement finding under the applicable comparison test remains possible — the wording of your claims controls, not the marketing story around the redesign. The calendar to seek interim relief starts from the point you had credible knowledge of the launch, not from a later confirmation that infringement occurred.
Provenance decides more than it seems to
The same evidentiary gap appears outside patents too — see When the training corpus has no provenance and its ownership sits on undocumented ground.
A parallel proof problem sits in digital assets: When the token refers to an unregistered right step by step, a missing register entry does the same damage as a missing design log.
What to do first
- Your patent attorney maps the rival's product feature-by-feature against every granted claim, not against the marketing description of the workaround.
- Your engineering lead secures a dated technical file — internal notes, prototypes, supplier correspondence — fixing when your own claim scope was settled.
- Your in-house counsel instructs an independent expert to record the rival's product configuration before any further design change makes comparison harder.
- Your legal team decides, together with counsel, whether interim relief is worth pursuing before a full infringement analysis is complete.
- Nobody outside this group comments publicly, or in writing to customers, about "identical" or "copied" designs.
Who decides, and by when
If you want to know who reviews this kind of file before it reaches a court, that is set out on the The people behind the reports explained page, not on this one.
| Situation | Forum | What is already running |
|---|---|---|
| Unitary Patent | Unified Patent Court, under the Agreement on a Unified Patent Court | The window to request interim measures, counted from credible knowledge of the launch |
| Classic European patent, validated per state | The competent national court of the validation state | The same knowledge-based window, assessed separately in each state |
| Rival's goods entering the EU by import | National customs authority acting under Regulation (EU) No 608/2013 | The detention request, which must be filed before the consignment clears customs |
If your situation differs
If your patent was granted as a classic European patent and validated only in a handful of states, the workaround must be checked separately against the claim text as it stands in each validation — a national court decides each dispute, not a single unified forum.
If the rival's redesign is announced but not yet sold, the case is not yet ripe for interim relief. Monitoring and evidence preservation come first, litigation second.
If the rival's product reaches the EU through import rather than local manufacture, the fastest lever is often the customs track under Regulation (EU) No 608/2013, run in parallel with any court claim.
What this page does not cover
This page does not construe your claims, does not opine on infringement, and does not value the dispute. Claim construction requires a technical comparison by qualified counsel; a workaround that looks trivial in marketing copy can still fail a formal claim analysis. If the rival trades through counterparties registered in the Netherlands, a factual check of registered ownership and filings runs separately, on the product layer — see Counterparty in Netherlands step by step.
Verified
Checked against: Regulation (EU) No 1257/2012; Council Regulation (EU) No 1260/2012; Agreement on a Unified Patent Court; Regulation (EU) No 608/2013.
Related situations
See also When a validation deadline was missed in practice, for the separate failure mode where the protection itself lapses before any workaround appears.
FAQ
What is the first step when a rival launches an obvious workaround?
Map the rival's product against every granted claim before reacting publicly. The comparison, not the marketing description of the redesign, decides whether there is a case at all.
Which deadline is already running?
The window to seek interim relief starts from the point you had credible knowledge of the launch. For a Unitary Patent, that window runs before the Unified Patent Court; for a classic European patent, it runs separately in each validation state.
Who decides, and on what evidence?
The Unified Patent Court decides disputes over a Unitary Patent, under the Agreement on a Unified Patent Court. A national court decides disputes over a classic European patent validated in its state. Both decide on a claim-by-claim technical comparison, not on how the workaround is marketed.