10.6. Market competitors

Market competitors' efforts to obtain rights of joint use constitute further secondary indicia closely related to commercial success. They may result in a positive decision on inventive step, but need not necessarily do so. In T 351/93 the board stated that the latter applied particularly where a technical and expert assessment of the invention in the light of the prior art led, according to the problem and solution approach, to the conclusion that the existence of inventive step had to be denied.

The case was slightly different in T 812/92 – the situation might arise where, shortly before the filing date of the contested patent, one of the patent proprietor's competitors offered a customer a technical apparatus without reducing to practice the advantageous technical solution according to the invention. This might be an indication that an inventive step was involved.

In T 252/06 the board confirmed the presence of inventive step inter alia on the grounds that the patent proprietor's competitors had used the patent's teaching and had filed applications relating to it.

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