You’ve created something brilliant, and now you’re in the long process of getting a patent. It may be years before the U.S. Patent and Trademark Office (USPTO) grants your patent, so what do you do? The good news is that you can still market your patent pending item with protection under patent law.
Why are pending patents protected by law?
Patents are intended to encourage invention and sharing inventions with the public for the greater good. Since the patent process can take so long, “patent pending” as a protected status helps to encourage invention even though it can take years to get a patent approved.
When does “patent pending” start to protect my intellectual property?
“Patent pending” starts to protect your patent as soon as you file for a patent. From then on, your pending patent is protected from infringement.
How do I let others know that there is a pending patent?
You describe your intellectual property as “patent pending” and mark your products with “patent pending” just like that. This lets others know that you have applied for a patent and that you may get a patent. Therefore, should they infringe on your pending patent, you may sue them once you get the patent. Use the term “patent pending” on all product labels and marketing materials to ensure that others know about your patent pending status.
What can I do if someone infringes on my pending patent?
That’s the catch: it’s not actually patent infringement until you actually have the patent. So, if the USPTO denies your patent, you have no recourse if someone else uses or recreates that particular intellectual property.
However, if you do have a patent, you can sue retroactively anyone who infringed on your patent while it was pending and marked with patent pending…even if they stopped infringing on your patent once you were granted your patent.
How can I keep others from infringing on my pending patent?
While the USPTO publishes pending patents, it doesn’t do so until about 18 months after receiving the non-provisional patent application. Thus, it’s entirely possible that others don’t know about your pending patent. The best thing to do is to let anyone you think is infringing on your pending patent know that you’ve submitted an application.
Someone is claiming that I’m infringing on their pending patent. What should I do?
Perhaps you were notified in a letter that you’re infringing on a pending patent. The good news is that you can’t be sued for infringing on their patent…yet. You should first require proof of the pending patent. Patent infringement is no small thing, but neither is stopping production or marketing. However, it’s possible that your accuser is coming late to the game, and you hold the provisional patent on something.
When should I contact a patent lawyer?
Contact a patent lawyer as soon as you think someone is infringing on your pending patent, or as soon as you’ve been accused of infringement. A patent lawyer can help you determine if you have a claim or defense. If you need assistance, contact our patent attorneys at 888-666-0062 to schedule a consultation.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
Law Office of Jason H. Rosenblum, PLLC © 2018 All rights reserved.