That's impossible to answer without seeing the claims of the patent. What is the patent?

Indeed, very interesting question, difficult answer! First, like Mr. Miller said, a patent protection scope is determined by the claims. This means that you'll have to find all the risky patents that are a) still valid (annual fees paid and a maximum lifespan of 20 years) for b) those countries in which you want to do business, and c) you fall within those patent claims. This is what is called 'freedom-to-operate'. Can I commercialize a product/method/use without infringing a valid patent for that particular geografic area? Like I mentioned here just before, patents can filed for a) a product or a composition, b) a method (like production) and c) a use of a compound for application X. It is therefore important to check all those patents. A difficult and intensive exercise!

Second, patentability is based on a) novelty, b) inventive step and c) industrial applicability. Especially a) and b) are important here. A carboxylate is not a phospate and therefore new, but the condition b) requires that you do something surprising for a skilled person to solve the objective problem. In this framework it is indeed important to check the scope of the valid patents in order to check how broad they are claimed. Very often 'Markush claims' are used to include substituents in a basic structure. The inventor has to show that his invention works with all those substiuents (= industrial applicability).

Third, let's have a look to your particular case. I just did a quick search on https://worldwide.espacenet.com/advancedSearch?locale=en_EP. I retrieved a number of older patents for these kinds of surfactants: https://worldwide.espacenet.com/publicationDetails/biblio?DB=EPODOC&II=0&ND=3&adjacent=true&locale=en_EP&FT=D&date=19750326&CC=GB&NR=1388924A&KC=A#

https://worldwide.espacenet.com/publicationDetails/biblio?DB=EPODOC&II=0&ND=3&adjacent=true&locale=en_EP&FT=D&date=19740103&CC=GB&NR=1342220A&KC=A#

https://worldwide.espacenet.com/publicationDetails/biblio?DB=EPODOC&II=1&ND=3&adjacent=true&locale=en_EP&FT=D&date=19700122&CC=DE&NR=1936843A1&KC=A1#

And also a number of more recent patent applications: https://worldwide.espacenet.com/publicationDetails/biblio?DB=EPODOC&II=0&ND=3&adjacent=true&locale=en_EP&FT=D&date=20121026&CC=WO&NR=2012145078A1&KC=A1#

https://worldwide.espacenet.com/publicationDetails/biblio?DB=EPODOC&II=0&ND=3&adjacent=true&locale=en_EP&FT=D&date=20110421&CC=US&NR=2011091408A1&KC=A1#

As you will see every patent has an International Patent Classification (IPC) and a Cooperated Patent Classification (CPC). These classifications represent the technical fields of the inventions. As you can see C11D1/004 & C11D1/006 represent surfactants with Fluorine & phosphorus: https://worldwide.espacenet.com/classification#!/CPC=C11D1/006

In order to find out if you can find patents related to perfluoroalkyl carboxylates, this CPC can be very useful: https://worldwide.espacenet.com/classification?locale=en_EP#!/CPC=C11D3/2075;

https://worldwide.espacenet.com/publicationDetails/originalDocument?CC=GB&NR=1509199A&KC=A&FT=D&ND=3&date=19780504&DB=EPODOC&locale=en_EP# So, combining just two CPCs without any keyword you'll get the next result list: https://worldwide.espacenet.com/searchResults?submitted=true&locale=en_EP&DB=EPODOC&ST=advanced&TI=&AB=&PN=&AP=&PR=&PD=&PA=&IN=&CPC=C11D1%2F004%2Flow+C11D3%2F2075%2Flow&IC=

In the previous patent, the first claims specifies an 'or' between an organic carboxylic acid, a phosphoric acid etc... So, to conclude a) retrieving all the patents, younger than 20 years that claim broad or narrow, product, method or use b) check the scope and their validity c) demand advice of a patent attorney about the strategy and your FTO d) if you have a new production method or a new use, think of own patent strategy!

Dear John Francis Miller Thanks for the answer.

The patent is http://patents.ic.gc.ca/opic-cipo/cpd/eng/patent/2540085/summary.html

Dear Nico Deconinck Thanks for very detailed answer.

This is patent http://patents.ic.gc.ca/opic-cipo/cpd/eng/patent/2540085/summary.html

Wow. That patent has a lot of claims.

I've only looked at them claims briefly and I am not a professional in the patent industry.

The first claim is: "An alcohol composition foamable under low pressure when mixed with air at low pressure comprising"

So, does this have anything to do with what you are doing? The patent isn't claiming the surfactants themselves.

If your original statement that " A perfluoroalkyl phosphate surfactant is patented before" is based on this patent then it is not true.

A brief web search for "perfluoroalkyl phosphate" reveals that these are available commercially. Unless you are synthesizing your own and there is a patent for the synthesis, I don't see a problem.

I expect Nico Deconinck will be able to add clarity.

Thank you so much John Francis Miller .

Thanks Mr Miller to give me the pass... Let me remind that in my first answer I referred to the CPC/IPC classifications for searching. The patent family (= equivalents in different countries that belong to the same invention): https://worldwide.espacenet.com/publicationDetails/inpadocPatentFamily?CC=CA&NR=2540085A1&KC=A1&FT=D&ND=3&date=20050407&DB=EPODOC&locale=en_EP shows different scope of protection (=claims) in several countries. I will just go more in detail in the EP, US and CA patents.

In order to judge about the scope of protection of a patent, you'll need to make a difference between a patent application and a patent (= granted). Granted patents are identifiable by a 'B' or a 'C' at the end of the publication number.

The EP patent protects: https://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20181017&DB=EPODOC&locale=en_EP&CC=EP&NR=1668105B1&KC=B1&ND=5#; the use of a composition as disinfecting agent: the composition consists of a) an alcolhol, b) a surface active agent and c) water wherein the fluorinated surfactant can be... a list of with i.a. a carboxylate. So it covers a composition with a + b + c with b that comprises several options. In this composition, a fluorinated carboxylate surfactant is covered, but again in this composition for a particular use. When you have a look a the international search and examination report, the examiner shows the different with the prior art in order to examine the novelty and inventive step: https://worldwide.espacenet.com/publicationDetails/originalDocument?CC=WO&NR=2005030917A1&KC=A1&FT=D&ND=6&date=20050407&DB=EPODOC&locale=en_EP#; as you will see in this PCT application, the claims were initially very broad. The search report compares the closest prior art with the features of the invention. The examination report: https://register.epo.org/application?documentId=EZP5MAML9393DSU&number=EP04786634&lng=en&npl=false gives an idea about the patentability. The claims are amended.

The US situation is clearly different: 4 US patents are granted:

https://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20070403&DB=EPODOC&locale=en_EP&CC=US&NR=7199090B2&KC=B2&ND=8#; protects the composition without specifying in the first claim its use,

https://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20100323&DB=EPODOC&locale=en_EP&CC=US&NR=7683018B2&KC=B2&ND=9#; the method of making a disinfectant with a composition X;

https://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20131029&DB=EPODOC&locale=en_EP&CC=US&NR=8569219B2&KC=B2&ND=10#; also a method of making and last but not least https://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20150127&DB=EPODOC&locale=en_EP&CC=US&NR=8940674B2&KC=B2&ND=11#; a composition. As you will see, without going too far in detail the US patents are continuations, which means that the inventors were allowed to amend slightly their claims for the several approaches. Nevertheless the basic invention still stays the same! You will also have seperate search reports for the US patents (not included here...).

The patent number you mentioned is a Canadian equivalent: https://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20101116&DB=EPODOC&locale=en_EP&CC=CA&NR=2540085C&KC=C&ND=12#; this granted claim is quite different (broader) than e.g. the European patent claim, which has been restricted after the search and/or examination regarding the closest prior art.

Please be aware that in the family list: https://worldwide.espacenet.com/publicationDetails/inpadocPatentFamily?CC=CA&NR=2540085C&KC=C&FT=D&ND=12&date=20101116&DB=EPODOC&locale=en_EP, still an EP application (n° 7) and an US applications (n°17) are still in the examination procedure.

What did we learn about this case: grant patents is basically built on improving technologies with known elements. In this case a composition, wherein the combination for a particular application (=use) is not known while the individual compounds are known. So, when making and commercializing the composition, there is a risk of counterfeiting. In order to defend for a specific compound, if (free) prior art for that compound can be found, it can be useful. So, it all depends on what you'll like to do. A profound patent search can be necessary to examine your freedom-to-operate (based on the aim and the application of the surfactant).

To conclude: take care of the different patent strategies worldwide in relation to your global business. Even with the same invention, you can get different scope of protection in several countries. Determine clearly what you want to do with the product/method and who is involved (making, selling, exporting,...). The whole chain can be accused for infringement! Perfluoroalkyl carboxylates are thus known (not patentable anymore) unless, in a new application (use), which is not obvious, a new method to synthesize or in a composition with other compounds.

Dear Nico Deconinck thank you so much for very wide answer.

Pasha Majidi

Check the best answer as requested by the RG. I believe the best answer is Nico Deconinck