Compatibility prohibited – an abuse of patent law?

Compatibility prohibited – an abuse of patent law?

The principle is rather old: sell a high-quality product relatively cheaply, but the consumables required for it relatively expensively. This works very well for razor blades, coffee capsules or toner cartridges, for example – and to the annoyance of consumers, of course, especially when the offering of low-priced compatible consumables is prohibited by patent law.

Now, patents are a good thing in themselves, because anyone who invests time and money in the development of new products should – quite rightly – also reap the fruits of their investment for a limited period and be protected from imitators who want to save their own development costs.

However, consumables in many areas have long been so technically mature that genuine innovations are in short supply. This pleases the consumer, who hopes for competition and falling costs, but annoys many a manufacturer.

So what can be done to keep the “earning money on consumables” business model alive? It’s simple: add technically superfluous but patentable features to the consumables, present the whole thing as an innovative solution to a “technical problem,” obtain a “compatibility blocking patent,” and design the main product so that it only works with the consumable if the consumable has the inherently superfluous features. That’s when, for example, the printer asks the cartridge, “do you have this or that?” (e.g. a sensor that measures something). If the cartridge says yes, it infringes the patent (unless it is an original cartridge), if it says no, unfortunately the printer cannot work with it. Third parties cannot then offer compatible products and consumers are forced to buy only from one manufacturer.

Due to special feature combinations, such compatibility blocking patents usually present themselves at first glance as quite complex technical solutions, but on closer inspection they regularly turn out to be an arbitrary combination of trivial features, where the combined features are known per se and the feature combinations do not really improve the consumable.

What further complicates the work of examiners at the patent offices is another typical feature of compatibility blocking patents: the “technical problem” supposedly underlying them does not exist in practice for the person skilled in the art. There is no actual technical problem to be solved. The respective prior art is mature. Since there is no technical problem, there is naturally also no prior art which the examiner could use to deny grant of a patent.

If inventors normally want to achieve the widest possible scope of protection with a patent in order to protect the use of the solution in all possible variations, the scope of protection of compatibility blocking patents is usually tiny. They offer no protection from an innovation point of view, as direct competitors can easily make their own arrangement of features outside the scope of protection. However, suppliers of low-cost consumables are forced to comply with the manufacturer’s arbitrary arrangement.

Compatibility blocking patents lead the purpose of patent law, to protect innovations, ad absurdum. For most start-ups and medium-sized companies, however, what still counts are rather basic patents that secure key innovations and also make the company interesting for investors.