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So an inventor as submitted its utility patent applicable, which may or may not be approved years from now.

He then tries to solicit companies to buy his invention immediately after submitting his application.

What incentive is there for a company to buy his invention before approval?

They can just outright steal his invention and if the patent ever gets approved they can then payback some royalty and buy its license at that time.

2 Answers 2

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If you file a European Patent you will get a provisional protection after publication, as it is described in Art. 67 EPC. If a state requires so, your provisional protection may start from the publication in a local language, e.g. after translation in the given language is provided. Art. 67 EPC is referring to Art 64 EPC which describes the inventors rights after grant.

Art. 67(1) EPC:

A European patent application shall, from the date of its publication, provisionally confer upon the applicant the protection provided for by Article 64, in the Contracting States designated in the application.

Art. 67(2) EPC:

Any Contracting State may prescribe that a European patent application shall not confer such protection as is conferred by Article 64. However, the protection attached to the publication of the European patent application may not be less than that which the laws of the State concerned attach to the compulsory publication of unexamined national patent applications. In any event, each State shall ensure at least that, from the date of publication of a European patent application, the applicant can claim compensation reasonable in the circumstances from any person who has used the invention in that State in circumstances where that person would be liable under national law for infringement of a national patent.

That is, in countries where no translation into a local langue is required, you may sue the infringer based on your provisional protection 18 months after filing the application. If however your application does not get granted, they can and most probably will sue you back.

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  • This seems similar to the situation in the US except you state the infringement law suit can commence before a patent is granted. That seems illogical to me. The application might be a complete joke. And never issued. I’m not an expert on EPO but I found this on a German patent attorney’s web site - “ However, please mind that the scope of protection of the published application will be determined retrospectively (ex post facto) by the scope of the granted patent or amended patent after opposition, respectively (Art. 69 (2) EPÜ).”
    – George White
    Jan 17 at 16:57
  • Art. 69(2) EPC: For the period up to grant of the European patent, the extent of the protection conferred by the European patent application shall be determined by the claims contained in the application as published. However, the European patent as granted or as amended in opposition, limitation or revocation proceedings shall determine retroactively the protection conferred by the application, in so far as such protection is not thereby extended. source: epo.org//law-practice/legal-texts/html/epc/2020/e/ar69.html
    – picibucor
    Jan 17 at 20:23
  • thanks - still isn't clear that the enforcement action can commence before grant.
    – George White
    Jan 17 at 20:42
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In the US, once issued, the inventor can try to use their rights to stop the company from ever making any more and license the invention to another company.

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