As a matter of principle, the question should be raised at the beginning of every product development as to whether there are already older industrial property rights (patent, utility model, design or trademark) of third parties that could stand in the way of the planned new product. It can be fatal if, after a long and cost-intensive development, it turns out that the new product cannot be manufactured and distributed due to older property rights or that the designation intended for the new product is already protected as a trademark for a third party. The question of possible older rights should therefore be clarified in advance by an experienced patent expert by means of a so-called freedom to operate search.

It is also advisable to file your own IP application as early as possible, since in Germany and most other countries the so-called applicant principle (first-to-file) applies. For patent applications, this means that the right to a patent belongs to the person who first filed the application and not to the person who first made the invention. Since certain problems in technology are often obvious, it cannot be ruled out that competitors may also be working on a similar solution and file an IP application at an earlier stage. Therefore, the earliest possible filing date is of particular importance.

Filing an IP application as early as possible can also prevent certain information about the new product from reaching the public before the application is filed. An essential prerequisite for a patent, utility model or design application is, in fact, novelty. This means that the subject matter of the development may not be made available to the public through written or oral description, use or exhibition prior to the IP application.

Therefore, during the course of product development, it must be ensured that no information is disclosed to arbitrary third parties. This can be a problem, as it is often necessary to talk to manufacturers and suppliers during the course of product development.

However, this may already jeopardize the novelty. In addition, a patent attorney can give tips on possible funding opportunities and advice on a sensible filing strategy.

So the rule of thumb is: a patent expert should be involved as early as possible in the product development process.

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Thomas Schwarz

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