You have an idea and wonder whether you should file a patent application to protect your idea. But, you learn that a patent application won’t stop the competition from copying your idea. That’s right; you can’t sue others for patent infringement while obtaining your patent. Should you still file a patent application?
While applying for a patent, can others copy the product?
Yes, others can copy the product while applying for a patent. When applying for a patent, all you have is a patent application. You don’t have a granted patent. When your patent has been granted, you can seek damages for their infringement while your patent application was pending based on patent pending infringement.
What is the value of applying for a patent if others can copy your product?
You may be asking yourself whether it’s worth filing a patent application if you can’t sue others for patent infringement during patent pendency. For products with a short life span, filing a patent application probably doesn’t make sense. By the time, the patent is granted, the product won’t be making you any money anymore.
First, you secure priority when you file a patent application. You have priority over others that file a patent application after you. The Patent Office will grant you the patent, not the later-filed application. At that point, you can sue copycat infringers. Also read: what is a priority date?
Second, by filing a patent application, investors are more likely to invest in your company. They know that when the patent application becomes a patent, it will be an extra barrier to entry that will protect their investment.
Third, you can sell your idea to another company by filing a patent application. Buyers can read your patent application and understand what you are claiming as your idea.
Fourth, the patent application delineates what is and isn’t your idea. As such, when you collaborate with someone after filing the patent application, they can’t claim something as their idea. That is if the idea was included in your patent application.
Fifth, you reserve your right to obtain a patent if you succeed at executing your business plans. Otherwise, your competitors will compete with you and steal your market share. With the patent application, you can vigorously fight for and secure the patent to sue your competitors when your business does well. Not so if you don’t file the patent application.
How to obtain damages for infringement before the grant of a patent?
You can seek damages for potentially infringing sales during the time you were applying for a patent. Typically, damages start to add up after the patent is granted. However, under 35 U.S.C. 154(d), patent laws allow you to secure damages for infringement that occurred before the patent grant. But, stringent requirements needs to be met.
First, your patent application must have been published under the pre-grant publication rules. If it hasn’t published yet, you can request early publication of the pre-grant publication. In this way, you maximize damages for patent pending infringement.
Second, your patent has to be granted.
Third, the claims in your granted patent have to be similar or identical to the pre-grant publication of your patent. This is probably the hardest requirement to meet since a large percentage of claims are amended during the examination.
Fourth, you must give your competitor actual notice of the pre-grant publication. You have to send them a letter regarding your pre-grant publication.