When a competitor files a patent application next to your product: who decides and when
Filing decides nothing by itself. A patent office examines novelty and inventive step years later, at grant, not on the day the application appears in a register. If the resulting European patent later gets unitary effect, the Unified Patent Court becomes the forum for any dispute over its validity or its reach into your market. Your product's exposure does not change on filing day.
What actually happens when the application is filed
An application enters examination the day it is filed, but publication follows a fixed period set by the office's own internal rules, not by a single clock shared across every jurisdiction. Until publication, the file is confidential; you cannot read the claims, and no one outside the office and the applicant knows what is being claimed.
Once published, the claims become public, and from that point the applicant may in some systems claim provisional protection for the period between publication and grant. That protection is narrower than a granted right and is calculated under the office's own procedure, not under a fixed formula published in advance. Examination itself runs on the office's internal timetable and can take several years before a decision to grant or refuse is issued.
Your product is not part of that examination. The examiner compares the claims against prior art that the office finds or that third parities submit; the examiner does not compare the claims against a competitor's catalogue or marketing material. A close resemblance between the application and your product is relevant to you, not automatically relevant to the file.
The basis: which forum gets the file, and when
A European patent can be granted with unitary effect under Regulation (EU) No 1257/2012, in force since 1 June 2023. The translation regime that applies to a unitary patent sits in Council Regulation (EU) No 1260/2012, in force from the same date. Choosing unitary effect is the applicant's decision, made after grant, not at the filing stage you are watching now.
Once unitary effect is registered, jurisdiction over validity and infringement for that specific patent belongs to the forum created by the Agreement on a Unified Patent Court, in force from 1 June 2023 as well — not to whichever national court either side would otherwise prefer.
A classic European patent, validated country by country instead of taking unitary effect, can still fall under that same Agreement during the transitional co-existence period, unless the holder has filed a formal opt-out for that patent. Which regime applies to a given filing is a question you answer by checking the register entry for that specific patent once it grants, not by assuming either outcome in advance.
What changes in timing and risk
Before grant, the application blocks nothing on its own; it is a claim to a right, not the right itself. You can usually continue selling your product during this phase, though the provisional protection described above may already attach a cost to continuing once the claims are published.
After grant, the calculus changes. An injunction becomes a live possibility, and if the patented goods cross a border, the holder can ask customs to detain suspected infringing shipments under Regulation (EU) No 608/2013, in force since 1 January 2014. The gap between filing and grant is exactly the window in which you still have room to act cheaply, before any of that machinery is available to the other side.
| Stage | Decision-maker | What is decided |
|---|---|---|
| Filing to publication | Patent office, file confidential | Formal completeness, initial classification, priority date |
| Publication to grant | Patent office examiner | Novelty, inventive step, final scope of claims |
| After grant, unitary effect registered | Unified Patent Court | Validity and infringement, decided together |
| After grant, classic patent, no opt-out | Unified Patent Court, transitional regime | Validity and infringement, subject to opt-out timing |
| After grant, goods crossing a border | Customs authority | Detention of suspected infringing shipments |
What to do, in order
- Pull the published claims once they appear, and read them against your actual product, not against the marketing description on your own website.
- Check the register for the patent family: same applicant, same priority date, filed in several offices in parallel, which tells you how seriously the applicant is pursuing broad coverage.
- Assemble your own dated evidence of prior use or independent development — the same discipline covered in When an acquired team brings prior work explained, applied here to your own product line instead of an acquired one.
- Decide whether the overlap is close enough to justify a freedom-to-operate review before the application grants, while the claims can still be narrowed during examination.
- Check whether the office's own procedure allows third-party observations on that specific file, and file them before the examiner's decision, not after.
- Set a calendar reminder for the grant date. The forum and the available remedies change the moment the patent is granted, not before.
- If unitary effect is later registered, confirm which court seat within the Unified Patent Court structure has jurisdiction over your product's market before you respond to anything.
Who decides, on what evidence
Before grant, the examiner decides alone, on the prior art the office finds and on any evidence the applicant chooses to submit. You are not a party to that stage by default, and you cannot force a hearing simply because the claims resemble your product.
After grant, the Unified Patent Court decides on the evidence the parties actually file, including dated technical documentation of prior use or independent development — the same evidentiary standard covered in When the creator disputes the mint and its limits, in a registry that has nothing to do with patents: a dated, verifiable record beats a bare assertion in both settings.
If the claim reaches a customs detention instead of a court, the customs authority decides on the application filed under Regulation (EU) No 608/2013 and on whatever the rights holder submits to support it, subject to your right to respond before goods are destroyed.
Four scenarios
- If the application is still pending: file no formal challenge unless the office's own third-party observation route is open on that file; instead build your prior-use record now, while dates are still easy to establish.
- If the patent has granted with unitary effect: the Unified Patent Court has exclusive jurisdiction over validity and infringement together, and a single decision covers every participating state at once.
- If the patent has granted as a classic European patent and has not been opted out: the Agreement on a Unified Patent Court still applies during the transitional period, so the same forum is likely to hear any dispute.
- If the patent has granted and has been formally opted out: jurisdiction sits with the national courts named in that opt-out, and the Agreement on a Unified Patent Court does not reach that specific patent.
Sources and limits
This page covers who decides and on what general timetable once a competitor's application enters the system, and which forum takes over once it grants. It does not draft a freedom-to-operate opinion for your specific product, does not value the commercial risk to your product line, and does not replace a documented review of the party behind the filing — the same discipline described in our Counterparty report before extending credit explained, adapted here to a filer rather than a debtor.
It also does not cover national opposition procedures run at office level in your specific jurisdiction, because no national register entry confirming that procedure is currently held in our records.
Verified
Checked against the sources below before publication. See our Methodology: collection, cross-checking and dating in practice for how each entry is dated and re-checked.
- Regulation (EU) No 1257/2012 — in force from 1 June 2023.
- Council Regulation (EU) No 1260/2012 — in force from 1 June 2023.
- Agreement on a Unified Patent Court — in force from 1 June 2023.
- Regulation (EU) No 608/2013 — in force from 1 January 2014.
Related
If the competitor's move has already reached the stage of a formal demand rather than a filing you spotted in a register, see A warning letter arrives from a patent holder patent for the forum and deadlines that apply at that later stage.
FAQ
What is the first step when a competitor files a patent application next to your product?
Pull the published claims once they are available and compare them, clause by clause, to your actual product. Filing alone changes nothing legally; the comparison tells you whether there is anything worth acting on.
Which deadline is already running?
None, as a rule, until the patent grants or a national office opens a third-party observation window on that specific file. Check the register entry for that application rather than assume a fixed period applies.
Who decides, and on what evidence?
The examiner decides alone before grant, weighing prior art against the claims. After grant, the forum set by the Agreement on a Unified Patent Court decides on the evidence the parties file, including dated proof of prior use or independent development.