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Topic: Patent Pending Infringement Questions (Read 4724 times) |
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TataBoxInhibitor
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Posts: 456
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Re: Patent Pending Infringement Questions
« Reply #5 on: Dec 13th, 2007, 11:56am » |
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one last thing....
just ask them for the publication number, or to notify you of the publication number once it is published. But like I indicated above, you can continue to do as you please until publication.
However, if you have not done a search or received any advice with respect to other granted patents, now would be the time to seek that advice.
Regards,
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CriterionD
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Posts: 202
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Re: Patent Pending Infringement Questions
« Reply #6 on: Dec 13th, 2007, 1:18pm » |
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While TBI (TataBoxInhibitor) isn't really off base here, I believe he is overlooking "they say they are sending me information on protecting their design patent[/b]"
Deisgn patents aren't necessarily published 18 months from their filing date (like utility patents are). They simply issue. Issuance can occur before or after the 18 month mark.
So...
a.) Even in the worst case scenario, you can sell your product to the point of being issued with no consequence as far as I am aware.
b.) Note what a design patent can or can't protect. Design patents do not protect any aspects of a product that affect a product's "utility." I.E. if the shape of a product is vital to how the product functions, the shape is not protectable by a design patent.
c.) To find a patent, if they won't provide info regarding their patent (or patent app), search by application, agent, and/or assignee name. If you want to limit your search to design patents, include the phrase "ornamental design for."
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www.criteriondynamics.com
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TataBoxInhibitor
Full Member
Posts: 456
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Re: Patent Pending Infringement Questions
« Reply #7 on: Dec 13th, 2007, 1:34pm » |
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Correct. I completely missed "design."
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j10495t
Newbie
Posts: 4
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Re: Patent Pending Infringement Questions
« Reply #8 on: Dec 13th, 2007, 1:55pm » |
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thanks for your help - just to clarify. Once I receive written notice of the pending patent I am still ok to sell until it the final patent is isssued.
Or do I really need to stop selling once I recieve notification of the pending patent.
Thanks,
Jay
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DJoshEsq
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Posts: 104
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Re: Patent Pending Infringement Questions
« Reply #9 on: Dec 13th, 2007, 2:48pm » |
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on Dec 13th, 2007, 11:56am, TataBoxInhibitor wrote:one last thing....
just ask them for the publication number, or to notify you of the publication number once it is published. But like I indicated above, you can continue to do as you please until publication.
However, if you have not done a search or received any advice with respect to other granted patents, now would be the time to seek that advice.
Regards,
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Well this isn't really the best advice...especially if your product does infringe the patent. If the patent has issued, you can be liable for damages from the date of issuance. If, however, the patent is just pending with the patent office you cannot be liable for damages until the patent publishes. Even if the application has published, you cannot be liable without ACTUAL NOTICE! What that means to you is - THEY (not you) are required to provide you ACTUAL NOTICE of the published patent application, which necessarily includes at a minimum the patent or patent publication number. Even if you locate the patent and are aware of the pending application, they must provide you with actual notice. Without such notive you are NOT liable for any damages until (1) you are provided ACTUAL NOTICE; or (2) the patent issues. Therefore, if you believe the patent has not YET issued - do NOT request the patent publication number at least until after you speak with a patent attorney.
A patent attorney will have to analyze the patent (whether design or utility) and provide you with an opinion as to infringement. Most, if not all, attorneys should also be able to provide you with possible changes/redesign efforts, if the product does or likely will infringe.
I am available by telephone and email if you would like to discuss these issues.
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| « Last Edit: Dec 13th, 2007, 2:49pm by DJoshEsq » |
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D. Joshua Smith, Esq.
Registered Patent Attorney
McDonald Hopkins, LLC
Cleveland, OH
216-348-5400
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