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Posted: 6/16/2009 2:54:56 PM EST
If something is listed as "patent pending", is it legal to produce something similar, since the patent has not been granted yet?

If it's listed as "patent pending", with an actual number, is there any way to look up and see what they are trying to patent?

Basically, I figured out a way to improve an existing product that is marked "patent pending". I do not want to cause any problems for myself with patent infringement, but I wouldn't mind making these items if I can do it legally. I've read on a couple of patent sights that you can pretty much copy items that say "patent pending", because they don't have the actual patent rights yet. They continued on to say that some companies will just keep amending a "patent pending" application for years to prevent someone from copying their product because they won't know exactly what patent is pending, and won't want to tie up money in tooling and production only to find out later that have to stop. Which is why they say it's good to not give out the patent pending number. I have that number, but I'm not sure where to find out what exactly it is that they are patenting.

My understanding was that if you were making something that would violate the patent, you must cease to produce it once the patent is approved.

The info I was reading said that some people prefer a "patent pending" over the actual patent because the patent lays out exactly what the product is, making it easy for someone to copy. If it was a patent pending and they didn't give out the number, you would have no way to know what was being patented. It went on to say that litigation for patent infringement is so costly, it makes it somewhat prohibitive. That's why they prefer the uncertainty of patent pending.

I don't know how much of that is true, and I know the best thing is to talk to a patent lawyer, but I just wanted to get a general idea of what to expect from the fine folks at arfcom. I'm not looking to rip a company off, and I'm not looking for any kind of problems, I would just like to find out what the options are.

Thanks in advance.

Link Posted: 6/17/2009 7:20:33 AM EST
There are rules about items being in general commerce before the patent is issued.

Some patent applications are available for examination.

Don't rip someone off.

If you are not seeking a patent of your own there is little other purpose to the questions you have asked.
Link Posted: 6/17/2009 7:28:46 AM EST
[Last Edit: 6/17/2009 7:32:34 AM EST by IIRC]
Originally Posted By brickeyee:
There are rules about items being in general commerce before the patent is issued.

Some patent applications are available for examination.

Don't rip someone off.

If you are not seeking a patent of your own there is little other purpose to the questions you have asked.


I'll be seeking one of my own, I just don't know what to expect. Not looking to rip anyone off, I just don't know how broad the coverage is for "patent pending", and I don't want to cause any problems for myself. I guess I would need to find out what aspects of the item they are trying to patent, and see if it's relavant to what I'm thinking of making. If it is, no biggie, I won't pursue anything.

Thanks

Link Posted: 6/17/2009 7:54:07 AM EST
I guess I should go into more detail so I don't look like I'm trying to rip someone off. There's a product on the market that has a "patent pending" on the label. There are probably ten other places making very similar products to the one marked patent pending. After looking at some of those, I have an idea that I think would be a good improvement to it. I don't want to step on any toes, and I don't want to cause problems for myself. I just don't know what the legalities are after seeing so many other companies making pretty much knock-off items. Like I said, mine is an improved version, but I was under the impression that patent pending meant leave it completely alone. I did a little digging around after seeing so many others copy it, and that's when I ran across the info in my original post, saying that as long as it's pending, you can do what you want. Once a patent is issued, then if it is too similar to what they have, you have to stop. It's just trying to decide if you want to wait for the patent to get issued, which it may not, or pursue things now and possibly have to stop later. I'm just having trouble figuring out what exactly happens with patent pending. I'd just hate to see a good opportunity pass by.

I know how researching things on the internet can be very misleading, so I was hoping someone could point out some kind of law or website that would explain some things. I'm just looking for a little clarity.
Link Posted: 6/17/2009 10:05:41 AM EST
Some companies file for a provisional patent along with a full patent. A provisional patent keeps anyone from filing for a patent or producing a similar product while the full patent is being prcessed. A provisional patent in good for 1 year but does not have a number attached to it so you can't look up the status. That is why you see "patent pending" on some items.

A provisional patent is renewable and prevents someone else from filing a patent on the same item but does not prevent you from making the item. You can however, file for a patent on the "improvement" itself of an existing product. That's what my lawyer explained when I filed for a provisional patent.
Link Posted: 6/18/2009 2:48:25 AM EST
Originally Posted By IIRC:
If something is listed as "patent pending", is it legal to produce something similar, since the patent has not been granted yet?

It usually is just fine. I'm not going to offer advice on here but do some google searches and you will likely see that a "patent pending" holder has few if any rights regarding infringement. Generally the only rights that they may have are if it is published and the claims are similar to what eventually issues. Until one gets notice, there is likely no problem.

As a slight digression, don't worry at all about people making accusations about "ripping off." It is a silly attitude on this board and one that has little merit. Unless one files for patent protection, they are effectively giving their product to the public. It's as simple as that.


If it's listed as "patent pending", with an actual number, is there any way to look up and see what they are trying to patent?
If it is published you can likely find it. If it is a provisional, within 18 months of filing, or had a non-publication request, then you can not.


Basically, I figured out a way to improve an existing product that is marked "patent pending". I do not want to cause any problems for myself with patent infringement, but I wouldn't mind making these items if I can do it legally. I've read on a couple of patent sights that you can pretty much copy items that say "patent pending", because they don't have the actual patent rights yet. They continued on to say that some companies will just keep amending a "patent pending" application for years to prevent someone from copying their product because they won't know exactly what patent is pending, and won't want to tie up money in tooling and production only to find out later that have to stop. Which is why they say it's good to not give out the patent pending number. I have that number, but I'm not sure where to find out what exactly it is that they are patenting.

See above.

My understanding was that if you were making something that would violate the patent, you must cease to produce it once the patent is approved.
If it is ever approved.

The info I was reading said that some people prefer a "patent pending" over the actual patent because the patent lays out exactly what the product is, making it easy for someone to copy. If it was a patent pending and they didn't give out the number, you would have no way to know what was being patented. It went on to say that litigation for patent infringement is so costly, it makes it somewhat prohibitive. That's why they prefer the uncertainty of patent pending.

That is generally not true. As mentioned earlier, you have little rights with a pending status. While it is a speedbump to other competitors, if there is enough money to be had, it won't substantially slow them down. Remember, patent litigation is costly on both sides. Often time as a patent holder you get an automatic licensee from an infringer.


I don't know how much of that is true, and I know the best thing is to talk to a patent lawyer, but I just wanted to get a general idea of what to expect from the fine folks at arfcom. I'm not looking to rip a company off, and I'm not looking for any kind of problems, I would just like to find out what the options are.

Thanks in advance.



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