A patent is a legal document that gives you, the inventor, the exclusive right to make, sell, or use an invention, product, or process for a set period. Patents are a type of intellectual property protection, helping secure a competitive advantage, while fostering innovations and technological advancements.
In the United States, patents are granted by the United States Patent and Trademark Office (USPTO). Patent pending means a patent application was submitted to the USPTO. Patent pending status primarily serves as an informative notice to potential competitors. Much like a runner in a race, you don’t get the prize until you cross the finish line.
According to USPTO, from application to issuance, the current average total pendency time is over 25 months. For many years, this meant that patent applicants bore the risk of public disclosure of their invention, which could be copied without legal consequence. Luckily, pending patents now have some legal weight and protections.
Patent Pending Infringement Protection
Thanks to The American Inventors Protection Act of 1999, there are patent pending infringement protections. In particular, you may be able to back-date damages to the date the patent application was published. However, any patent infringement litigation is only permissible if and when the patent is granted.
Monitor and Notify Potential Infringers
A patent pending may attract attention from competitors, investors, or others, who recognize the potential of the invention. Hence, it is important to remain vigilant and monitor the marketplace.
If you identify a potential infringer during the patent pending phase, it’s important to notify the other party of your concerns. Creating awareness strengthens your position in any patent infringement litigation. Compare and analyze the claims of the pending patent application with the inventions, processes, or technologies you suspect may be infringing. Send a notification letter and a copy of your application to inform them about the existence of your patent pending status and specific references to the similarities or overlaps in the protected features or elements.
Secondly, the patent claims in the published application must be substantially the same as those issued when the patent is granted. Substantial changes to the scope of the claims may impact the collection of damages from infringement litigation.
‘Unenforceable’ Litigation
Since the crux of a patent is to exclude others from using, selling, or making your invention, potential infringers may also attempt to discredit you. Here are a few ways this can happen:
- Validity – Being new, or “novel” (something not done before) is a condition of patent issuance. The infringer may assert that your invention does not qualify and attack its validity.
- Inequitable Conduct – The infringer may claim that you misinformed, misled, or withheld important information from the USPTO in your patent application.
- Misuse – The infringer may argue that you engaged in certain anti-competitive behaviors, including violations of antitrust laws.
Have Questions About Patent Infringement? Contact a Highly Experienced Patent Attorney in Los Angeles Today
If you have questions about a specific aspect of the patent application process or want to consult with an attorney about a pending patent application, contact the Omni Legal Group. Our team of experienced and highly reputable patent attorneys in Los Angeles will work tirelessly to ensure you secure the provisional patent, non-provisional patent, design patent, utility patent, or plant patent application necessary to protect your invention.
For further information or to schedule a consultation please contact Omni Legal Group at 855.433.2226 or visit www.OmniLegalGroup.com to learn more.