When the same invention is granted to someone else: what to do first
If a patent office has granted the same invention to another applicant, the first move is not a complaint letter. It is to work out exactly what was granted, under which system, and which challenge route is still open. The route differs for a national patent, a classic European patent, and a European patent with unitary effect.
Basis
Where the rival grant is a European patent with unitary effect, the challenge sits inside one framework rather than several national ones. Regulation (EU) No 1257/2012 creates that unitary protection across the participating states. Council Regulation (EU) No 1260/2012 sets the translation arrangements attached to it. The Agreement on a Unified Patent Court gives one court exclusive competence to hear a revocation action against that patent, instead of a separate case in each country.
Where the rival grant is a purely national patent, or a European patent kept outside unitary effect and outside that court's competence, no EU act governs the challenge. The route runs through the national patent office first, and through the national courts on appeal.
Practical consequence
A rival grant changes two things at once: priority and timing. If the other patent claims the same invention, your own pending application may be refused for lack of novelty. If your own patent has already issued, the rival grant does not cancel it, but it opens the door to a counter-challenge.
Ownership questions surface early when the inventors themselves are spread across borders. What to do first in this situation step by step depends on where each inventor is employed and which law governs the assignment of their share.
What to do
- Client: pull the full file history of the rival grant — filing date, priority claims, and cited prior art.
- Client: compare the granted claims against your own application or patent, claim by claim.
- Counsel: establish which forum has competence — national office, EPO opposition division, or the Unified Patent Court.
- Counsel: check whether a time-limited challenge window is still open on that grant.
- Client: preserve dated evidence of your own prior work — lab notes, disclosures, earlier filings.
- Both: agree who instructs the challenge and by which date, before the window closes.
Who decides
| Grant type | Forum | Who decides |
|---|---|---|
| National patent | National patent office, then national court on appeal | Examiner, then judge |
| Classic European patent | EPO opposition division; national court for national validity | Opposition division, then national judge |
| European patent with unitary effect | Revocation action under the Agreement on a Unified Patent Court | A panel of the Unified Patent Court |
Forks
- If your own application is still pending, the priority question is decided first — a refusal on novelty grounds can follow before any challenge is filed.
- If your patent has already issued, the rival grant does not remove it, but it is evidence you will need to address in any revocation defence.
- If the rival owner is already exploiting the invention commercially, a related question arises: When enforcement is sought against a holder and the underlying record does not match the register, enforcement can stall before it starts.
Sources and limit
This page does not decide whether your claims are novel, whether the rival grant is valid, or what a court or opposition division will award. It does not replace a drafted opposition or revocation brief, and it does not tell you which challenge to file before both sets of claims have been compared side by side.
Before any dispute step, it is often worth knowing what public registers already show about the other side. For a first read on that, see Counterparty in Sweden step by step.
Checked against the sources named above. For how sources are tiered and delivered across this site, see Sources by tier and delivery route and who decides.
Related: When an injunction application is served explained.
FAQ
What is the first step when the same invention is granted to someone else?
Identify exactly what was granted, under which system, and compare it against your own claims before filing anything.
Which deadline is already running?
A time-limited challenge window opens on publication of the grant. Its length and the forum it belongs to are set by the office or court that issued the grant, and confirmed on the file itself.
Who decides, and on what evidence?
The forum depends on the type of grant — a national office, the EPO opposition division, or the Unified Patent Court under the Agreement on a Unified Patent Court. Each decides on the filed claims, the cited prior art, and the priority documents.