I have pending patent applications – can I sue someone infringing my patent claims?

Until the Patent Office examines your patent applications, deems your inventions eligible for patent protection, and issues you a patent, we do not have patent rights to enforce against infringers in court. We can send cease-and-desist letters informing infringers of your pending patent rights and demanding that they stop their infringing activities. However, their legal counsel, if competent in this area of the law, would advise them of your lack of enforceable rights at this time.

Once the Patent Office publishes your patent applications, patent counsel can send a copy of the published applications to the infringing party along with a cease-and-desist letter. Having a published application will potentially start the time-frame in which you would be eligible to recover monetary damages for patent infringement in a later patent suit filed after your patent issues. The claims in the ultimately issued patent would need to be nearly identical to those in the published application; otherwise your monetary damages would accrue from the date your patent issued rather than the date your patent attorney sent the notice of your published application. Your patent attorney can request that the Patent Office publish your patent applications sooner if you like.

Thus, a patent applicant has limited enforcement options available to him until the Patent Office issues him a patent for his invention. An alternative enforcement mechanism that your intellectual property could utilize for you without an issued patent would be misappropriation of your trade secrets, if applicable. If the other party obtained through improper means information that you were keeping secret, your intellectual property attorney could assert trade secret claims against the other party.

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This entry was posted in IP Litigation, Patents, Trade Secret and tagged , , . Bookmark the permalink.

One Response to I have pending patent applications – can I sue someone infringing my patent claims?

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