Aftermarket Urged: Be Cautious in Europe

The only legal Aftermarket alternative to OEM products may be compatible products.

So says German-based patent attorney Dr. Katja Dauster, who spoke at the annual RemaxWorld Summit in Zhuhai China. As one of the partners in patent law firm, Ruff, Wilhelm, Beier, Dauster & Partner, Dauster spoke on the hot issue of “trading with aftermarket products in Europe”.

Dr. Dauster mentioned that patentees have the exclusive right to make, use, sell, offer for sell, or import or process for the patented products, the patented process and the products obtained from a patented process.

She urged the Aftermarket to not only judge a patent by its outlook, but by the most essential part of the patent documents: the claims. “If any or all features of a claim are fulfilled, either literally or equivalently, a patent is infringed.”

Dr. Dauster pointed out there are two kinds of products that will definitely infringe European law:

  • Infringing products: these can be both new built (sometimes called ‘clone’ or remanufactured cartridges. Even though they are not produced by the OEMs, they contain all the essential features of the original cartridge.
  • Counterfeit products: any Aftermarket cartridge packaged to be sold under the trademark/brand name of OEM.

The only legal alternative to OEM products, Dauster advised, may very well be the controversial compatible products, which she defined as being: new cartridges produced by a third party (i.e. Non-OEMs) and sold under a clearly identified trademark/brand name of a third party (or customer). Dr. Dauster explained, if a third party sells a product, which does not use the particular component designed by an OEM patentee, the product will not infringe the patent. However, the third party may infringe other patents since the OEM will not only protect the product design but may also patent the workaround solutions.

Dauster advised the Aftermarket to be diligent in learn the OEMs’ IP rights thoroughly before they develop compatible products.

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