Marlborough, MA asked in Patents (Intellectual Property) for Massachusetts

Q: Can someone accuse you of patent infringement if patent is not granted and is only published?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
  • Patents Lawyer
  • Pittsboro, NC

A: The old rules were that you were not liable for infringing a patent until the patent issued. So you did not infringe a pending application.

That is still true but there is another form of damages called provisional rights (totally unrelated to provisional patent applications). The patent owner can send a letter with a copy of the published application and warn a party that this is pending and if we get these claims substantially as they were published, then we can seek provisional rights damages from you from the date of this letter to the date that the patent issues . (After the patent issues, they would switch to seeking normal patent damages.).

You may want to consult with a patent attorney and monitor the progress of this application. You may want to search for relevant prior art and submit that to the patent office to help ensure that the pending application is rejected or at least needs to narrow the claims so that your product is less likely to be at risk.

Design patents do not appear until they are issued so the above discussion applies to utility patents not design patents.

I hope this helps.

Kevin E Flynn

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