Patent Pending Infringement: How to Identify It & What You Can Do About It

If you’re reading this article, you might be worried about protecting an invention or an idea that’s currently making its way through the patent process. Or, you might be wondering how exactly the patent process works, and what sort of protections you might be able to expect along the way. Fear not, this blog has got you covered.

Originally posted on December 27, 2018 @ 9:33 am

If you’re reading this article, you might be worried about protecting an invention or an idea that’s currently making its way through the patent process. Or, you might be wondering how exactly the patent process works, and what sort of protections you might be able to expect along the way. Fear not, this blog has got you covered. Let’s start with what a patent is, and what it means to have a patent pending.

Patents and Patent Pending

A patent is a license given by a government authority that gives rights or a title (for an invention, usually) to an individual or entity for a set period, and also gives that person or entity the sole right to making, using, or selling that invention.

So what does patent pending mean legally? The term patent pending is used to describe an application for a patent that has been filed with the US Patent Office, but has not yet been issued as a full patent. The term patent pending is usually used to indicate to anyone who might be interested in copying an idea that they might face serious legal trouble should they violate it. So, something that has patent pending status is likely on the road to becoming a full patent, but is not guaranteed.

Patent Pending Infringement

Thanks to the The American Inventors Protection Act of 1999 (AIPA), patents pending have legal protection from copying and infringement. Patent pending infringement does have a catch, however: the owner of the patent pending must wait until their patent application clears the patent office and becomes a full patent, at which point legal action can proceed.

While that might not seem like much, the penalties for violating the rights and protections of a patent can be severe.

The best patent pending protection is having an idea or invention that can surely be proven to have been copied should you need to pursue such an avenue in court. A proper patent attorney can also help you navigate the web of competing claims of related patents and statement in your invention to maximize your leverage. Your patent pending provisional rights offer a clear layer of protection:

“patents issuing on published applications will include the right to obtain reasonable royalties from others who, with actual notice of the published application, made used, sold, offered to sell, or imported the invention as claimed in the published application before the patent was granted.”

What this means is that you’ll likely be entitled to some additional damages should you be able prove you’ve filed the application and that it has been violated. Obviously in the business world thing’s aren’t necessarily as clear, and there is always the legal challenge of actually getting someone to pay. On the legal side it’s generally a good idea to consult a qualified patent attorney before issuing a letter or alerting patent pending infringers. There could be issues with language, or how your claims are couched in your original patents, that may not be immediately apparent.

Unenforceability

While you’ll be working to make sure your patent application is both valid and solid, you have to be ready for others who might be competing for your idea to attempt to make any patent litigation “unenforcable.” All this means is that their legal team (in the event there is a conflict) will be trying to prove that your patent or your invention is not yours. Here’s some ways that can happen:

Patent Validity – When a patent is issued, it is presumed valid. However, someone can charge that validity by claiming your patent didn’t meet the patentability requirements. The goal is to prove that your idea wasn’t novel. Obviously the examiner will work through this while your patent is pending, and you may need to create amendments, but the entire goal of potential infringers will be to attack you however they can.

Inequitable Conduct – An opposing legal team might attempt to prove that you obtained your patent in a devious or underhanded way, or that you attempted to lie to the patent office. Obviously you came about it honestly, but the other team may claim otherwise.

Delay in Lawsuit – If you take too long to sue over a patent violation, you might lose because of it! Timeline’s matter, don’t get burned, it’s usually best to speak with an expert sooner rather than later, and while I’m a fan of DIY navigating patent law can be tricky.

Patent Misuse – If the other legal team can prove you’ve violated antitrust laws or have acted in extreme levels of bad faith, you could potentially lose enforceability. Make sure that you’re clear from a legal standpoint here, especially if you’ve recently parted ways with a former employer, or worse yet are being sued by said employer.

What to watch out for and what to do if you think a pending patent has been infringed.

Now that you know what patent pending status means, it’s important to keep a few things in mind as you set out to protect yourself.

Making sure that the idea you have is rock solid and patentable is a great first step, and then after that, keeping a watchful eye out for anyone potentially looking to copy or replicate your work. The good news is that if your idea is good, the potential damages you can seek for someone who steals your work are very hefty. Often, this will discourage most entities from attempting to replicate your work, and most often they will seek to buy your idea, rather than copy it. But, should the worst happen, you will have rock solid legal precedent to pursue damages against whoever has violated your patent. It doesn’t hurt to locate a good patent attorney while you’re at it.

We hope this article has been helpful in outlining some of the features of patent law. If you’d like to learn more, or talk to us about potential legal counsel, contact us.

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