Q: I am an online seller and received a letter in the mail from another company regarding an item that has a patent pending

A: This situation merits working with patent attorney to sort out the current status and possibly to intervene to help the Patent Office reject or at least narrow the claims.

As a preliminary step, you may want to check on the status of the pending application using USPTO Public PAIR. https://portal.uspto.gov/pair/PublicPair You may see that the Examiner has already rejected the claims and is awaiting their response. If so, then you may not want to do anything.

Technically, they have no power to command anything while the application is pending. They can put you on notice of their pending claims and possibly obtain pre-issuance damages through something called provisional rights (has nothing to do with provisional patent applications).

It is possible that you sell a competing product but none of their pending claims match on you. You may want a patent attorney to review the pending claims against your product. https://www.flynniplaw.com/services/legal-services/freedom-to-operate/opinions

It could be that their claims require a quirk that you could live without. So maybe you adjust your product to stay clear of their quirk in the claims. This is called design around. https://www.flynniplaw.com/services/legal-services/freedom-to-operate/design-around-guidance

You may want to set up monitoring of this application so you see how things are progressing and close down before their patent is issued. https://www.flynniplaw.com/services/legal-services/monitoring-third-party-applications Likewise, you may want to conduct a patent search and find some prior art to help the USPTO reject their claims.

As you can see there is a fair amount of nuance here so this is not usually a do-it-yourself project. Time to hire a patent attorney with the right skills.

I hope this helps.

Kevin E Flynn

A: By the way, -- not knowing of their pending application does not change whether your products may someday infringe any patent that is issued. Patents apply to innocent infringers. (People who did not copy but infringed).

Patent law has a mechanism to punish people that ignore known patent rights by allowing the judge to increase the damages by a multiplier of up to 3.0. This is know as willfullness.

As they don't have a patent yet at all, discussion of willfullness is is premature but you may face this risk if they get the claims in their published application and you continue to infringe their patent after it issues.

I hope this helps.

Kevin E Flynn