In a previous post, I explained how a patent application cannot be enforced against an alleged infringer until it actually issues. The reason is simple. Until a patent application is examined by an Examiner at the US Patent Office, there is no guarantee that the inventor is actually entitled to patent protection for his or her invention. Indeed, many patent applications are filed each year, which are denied or otherwise go abandoned before issuing as a patent.
So you might ask, why should I even apply for a patent if I can’t enforce it until the patent actually issues? It can be years before a patent issues. I’ve had patent applications pending for clients of mine for 2 or 3 years and sometimes even longer.
It would be similar to say, why should I lock my front door if someone can still break in and rob my house. Just like the lock on your front door, patent pending status serves as a deterrent for reputable businesses. A reputable business knows that they at least need to investigate any claim of patent pending before they outright start producing a product, because a patent is valid for 20 years from the filing date after it issues. That’s a long time unless you’re a fly-by-night business that doesn’t plan to be around in 1 or 2 years.
Once a patent issues, someone who continues to knowingly infringe the claims of a patent can be liable for enhanced damages for willful infringement. Most reputable businesses don’t want to invest the time, money, and other resources into developing and marketing a product that they know will have to be shelved as soon as a patent issues, or risk being held liable for damages.
Not taking any steps to protect your invention is just donating the invention to the public domain for anyone to copy. You can’t license or sell the rights to your invention, because without a patent application or issued patent, you do not have any rights to license or sell.
Contact a patent lawyer, Denver patent attorney Mark Trenner at 720-221-3708.