Intellectual Property Forums (http://www.intelproplaw.com/Forum/Forum.cgi)

(Message started by: Lancaster on Oct 19th, 2007, 4:37am)

Title: Restrictions resulting from a Patent Application
Post by Lancaster on Oct 19th, 2007, 4:37am
Hi,

I'm new to the forum - it looks like an excellent resource and I'm hoping someone can give me some advice.

I am about to produce a product, the technology for which has been in the public domain for some time.

Another company has applied for a patent for this product. I do intend to monitor the patent and will probably challenge it when it is published.

In the meantime, how can I proceed? Do I have to stop  trying to sell this product because they have applied for a patent for it?

What, if any, restrictions am I under, as a result of them registering the patent application?

TIA for any comments.


Title: Re: Restrictions resulting from a Patent Applicati
Post by Wiscagent on Oct 19th, 2007, 4:42pm
There is no legal requirement that you stop selling a product just because someone else applied for a patent that would claim your product.

Whether or not you decide to stop selling the product is a business decision.  But keep in mind that a patent may never issue from the application; and even if a patent does issue, it may not cover the product you will be selling at that time.

Title: Re: Restrictions resulting from a Patent Applicati
Post by Lancaster on Nov 5th, 2007, 4:09am
Thanks Richard, very helpful.

Best Regards

Martin

Title: Re: Restrictions resulting from a Patent Applicati
Post by Bill Richards on Nov 5th, 2007, 7:06pm
Just to expand on Richard's post, if the potential patentee is marking his goods with "patent pending", then a notice function is effected and recoverable infringement may begin as soon as the patent issues. Maybe a litigator can expand further?

Title: Re: Restrictions resulting from a Patent Applicati
Post by Wiscagent on Nov 6th, 2007, 3:19am
Good point Bill. I hope a litigator expands further on this issue, because I've never been clear on the meanings of "reasonable royalty", "substantially identical", and "actual notice" in the context of 35 USC 154 (d). Is there a significant body of case law yet?

Title: Re: Restrictions resulting from a Patent Applicati
Post by Bill Richards on Dec 28th, 2007, 9:44am

on 11/06/07 at 03:19:08, Wiscagent wrote:
Good point Bill. I hope a litigator expands further on this issue, because I've never been clear on the meanings of "reasonable royalty", "substantially identical", and "actual notice" in the context of 35 USC 154 (d). Is there a significant body of case law yet?

Check Harmon, Patents and the Federal Circuit, for a pretty thorough treatment of at least the reasonable royalty issue.



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