Friday, April 10, 2009

'Patent Pending' Infringement?

[Note to readers: Day 5 of anti-celebrity week and our experiment is proving to be a disaster. The Dear Rich staff finds itself even more obsessed with celebrity questions including: Do celebrities smell worse than the rest of us? And does anybody have time to read through five months of MC Hammer tweets?]

Dear Rich: I received a "Patent Pending" on an item in November 2008. I have since been exploring the possibilities of filing a full patent. I have sold my item on eBay, as well as presenting it to large companies. Now I've found someone on eBay who has copied my idea. Of course, it's not as good. They haven't put in all the hours of perfecting it and making it store quality, but they copied it all the same. What do I do next? I've been told to write a "cease and desist" letter before hiring an attorney. I've worked without an attorney so far because I've been putting all the money I have into my product. But I will hire one if I have to. I'm so glad you asked. We're sorry to learn that someone is ripping off your hard work, but the short answer is that there is nothing you can presently do under patent law to stop someone from copying your invention. "Patent pending status" -- which is achieved by filing either a regular patent application (RPA) or (as in your case) a provisional patent application (PPA) -- puts the world on notice that you have applied for a patent. Until a patent is granted, you cannot use patent law to stop anyone. There is one twist: If your RPA is published (which usually occurs 18 months after filing the RPA) and the infringer is made aware of the publication, you can later sue (after the patent is issued) and collect damages for the period starting with the date of notification. Even though you cannot pursue the infringer under patent law, you may, however, have a claim that they copied your trademark or your copyrighted designs, or they used unlawful means to obtain your trade secrets.