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Do I own the rights to my invention when it is still “Patent Pending”?


An invention becomes “Patent Pending” after the owner makes an application with the U.S Patent and Trademark Office (USPTO). During this time, your patent is protected, and no one can steal or use it without your consent. However, the right to sue an infringer is only applicable after successfully obtaining the patent.

The evaluation process takes between one and three years. USPTO can reject your application if your invention is not patentable or if the applicant has not used the correct format and language in the application. Before filing for a patent, it is wise to conduct a preliminary patent search to check whether similar developments are related to your invention. 

What are the various ways that another party may infringe on your patent?

Patent infringement generally happens when another business or party sells, makes, or uses a patented product without the permission of the owner in the following ways:

  • Direct infringement occurs when a company produces a patented item without the authorization of the original patent holder
  • Indirect infringement occurs when a third party helps or influences a company or individual to infringe a patent
  •  Contributory infringement happens when a direct infringer sells patented inventions or parts not considered for commercial use
  • Literal infringement occurs when the infringer uses similar words in the patent claim and device
  • Willful infringement happens if the infringer intentionally disregards another party’s patent rights even after being issued with an infringement notice

What are the defenses in a patent infringement claim?

An alleged infringer may defend the suit against them by declaring that the original patent is not valid. An invalid patent could occur under several circumstances, including:

  • The original applicant included wrong information during in the filing paperwork
  • The alleged infringer is able to prove that the patent is not new
  • The patent was issued under anti-competitive business activities

What are the penalties for patent infringement?

If the court rules in favor of the original applicant and confirms infringement, the infringer should pay either damages or a reasonable royalty to the patent holder. The owner of the patent then mandates that the infringer stops producing infringing items. The court also issues the infringer with a permanent injunction for violating the patent or with increased damages if it is discovered that the infringement was willful.

Patent infringement is a complex and technical claim to deal with, particularly for companies facing this issue for the first time. Understanding your rights and ensuring all legal rules and regulations have been followed during the application process can be your best way to handle any potential infringement cases.