Defending Your Patents: Denials, Production And Protections

Patents are highly complex protections for your innovations and inventions, but the process of getting your patent approved and that product for the market, is not always obvious. This article dives into what you can do to protect your patent application and eventual product, as well as how to deal with infringements. If you have wondered about any of the following, then this article is for you:

• Why was my patent denied? What can I do about it?
• When should I release my product: before, after, or during the patent application?
• What should I do if I believe someone is infringing on my patent?

For What Reasons Can My Patent Be Denied?

The government entity responsible for handling patent applications is the United States Patent and Trademark Office. They are the ones who will accept or deny your patent application for one or more of the following reasons.

The first possible denial is for a lack of novelty. If your idea already exists and someone else has patented it, yours will be denied. You can try to avoid this by carefully searching through existing patents and products beforehand with the help of an attorney.

The second and even more likely reason is a lack of patentability. This happens a lot to those who file a patent without having it carefully reviewed by an attorney. This occurs when the innovation or invention is not tangible enough, is too abstract, or does not fall under one of the approved categories for patents.

Finally, if your patent is too broad in scope, and captures too many variations or modifications, the USPTO may reject it. This can actually be a good thing, however, as you then enter into a period of negotiation called “prosecution,” which allows you to slowly refine and narrow down your patent until it is accepted.

If your patent is accepted outright, that may mean that it is, in fact, too narrow. Unfortunately, this could mean that it will not provide sufficient protection for your intellectual property.

If So, What Can Be Done At This Point If The Patent Is Denied?

If the patent is denied for one of the first two reasons, you did not prepare properly, but if it gets rejected for the third reason, being too broad, that can actually be positive in the long run. This is because the USPTO allows you to negotiate to get approval even after such a rejection.

With the help of your attorney, you can make adjustments to your patent application and also propose arguments and explanations to the USPTO with the goal of getting it approved. This is ideal because once it is accepted, you will know it offers the broadest and best possible protections.

However, if it was accepted outright, it may very well be because the patent fails to offer meaningful and significant enough protections. Fortunately, if the patent application is rejected even after submitting amendments and arguments, there is still the option to appeal.

Unfortunately, appeals, while possible, remain expensive and slow, which could be a significant investment of time and money for an uncertain outcome. This is why, in general, it will be better to negotiate with the USPTO instead of just appealing.

And the best thing about the extra time during “persecution” is that your product is protected against copying. The patent is enforceable retroactively once it has been submitted, even if it takes years to agree.

When Is The Right Time To Take A Patented Product, Innovation, Or Service To Market?

While you can, in theory, wait until the patent is fully approved to begin selling your innovation, that is wasting perfectly good earning opportunities. By waiting, you waste the months or even years it can take to get the patent approved, years that count against the limit of the patent’s protection.

Ideally, the right time to get your product into the market is right after you file your prospective or full patent application, as that is the date at which the patent protections begin.

Any kind of infringement activity, such as duplication, copying, and so forth, even before the patent is approved, can be punished as soon as it is. For example, if you file a patent application right now and start selling but end up not selling well because someone copied your product, once you get the patent, you can sue them, even for infringements that occurred when it was pending.

Obviously, however, you do not want to release a product on the market before the patent has been filed.

Why You Should Never Market A Product Or Service Before Filing The Patent?

The problem with putting a product out onto the market is that you are, in effect, telling the whole world about it and whatever makes it special. That innovation and spark is only protected if you have already filed a patent for it.

In the US, there is a single-year grace period after you launch the product in which you can still file for patent protections on it, but that does not apply internationally. Many countries have absolute novelty requirements which means once the product is out on the market, you cannot get a patent on it.

There are some (rare) situations that you may want to delay letting the world know you have certain innovations or inventions. To do so, you can put your patent on the non-published track, which delays when it will be known to the world. But that is rare.

What Can Be Done To Protect My Patent From Being Infringed Up In The Future?

Once the patent has been approved, you can begin using the protections it offers against anyone who has infringed on it. Ultimately, this almost always means filing a lawsuit. You can sue anyone out there infringing on your patents. Infringement counts as anything that goes against what you have claimed in your patent. For example, if someone duplicates some or all of your design, uses the same new manufacturing process, or does part of what your new process does.

Unfortunately, lawsuits are expensive, so it will not always be worth taking such a drastic step immediately. Instead, you draft a letter demonstrating the infringement and threatening to sue unless you come to some sort of agreement about compensation. For example, you could reach a royalty agreement for you to get paid in exchange for not suing them.

Such agreements and negotiations are complex. So whether you want to take a patent infringement case to court or resolve it with an amicable agreement, you need an experienced lawyer on your side. For more information on Getting A Patent Approved In California, an initial consultation is your next best step.