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Patent PendingProvisional Rights
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Can you take actionagainst a competitorinfringing on yourpatent application?
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Yes.
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Damages for pre-
patent grantinfringement byanother are nowavailable.
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The AmericanInventors ProtectionAct, 35 U.S.C. § 154(d)
gives the inventorprovisional rights:
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“patents issuing on publishedapplications will include the right to
obtain reasonable royalties from otherswho, with actual notice of the publishedapplication, made used, sold, offered tosell, or imported the invention as claimedin the published application before the
patent was granted.”
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Once a patent application ispublished, an applicant mayassert provisional rights.
Publication occurs 18-monthsfollowing the filing date orpriority date claimed by an
application.
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These § 154(d) provisionalrights provide a patentee withthe opportunity to obtain a
reasonable royalty from a thirdparty that infringes a
published application claimprovided:
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actual notice is given to thethird party by applicant (theinventor probably needs tosend a cease-and-desist
letter), and
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a patent issues from theapplication with a
substantially identicalclaim.
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Having this ability to protect an inventionis a powerful sword in the inventor’s bagof weapons. It is risky business for yourcompetition to take the chance and sell apatent pending product because theycan be sued at a later date and possiblybe forced to take all their products “off
the shelf.”
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