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   When a search shows up empty but...
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   Author  Topic: When a search shows up empty but...  (Read 1195 times)
sdmcxian
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When a search shows up empty but...
« on: Nov 11th, 2007, 8:26am »
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I very recently came up w/ an idea and performed all the patent searches allowed as well as internet searches for a similiar product. I found nothing. I contacted attorney's and put the patent procedures in place and am now pending. Then while surfing the net, one site lead to another site leading to another and I found a company who is TM only and on their site they have as 'coming soon'-a product identical to mine. There was no patent pending wording or TM wording listed so I then searched the TM database and found the name of said product filed a year before. If a products going thru the patenting process, is it required to say patent pending? Had I not been surfing the net (and I wasnt surfing looking for products similiar to my idea just other uses of my idea)this product would have never been found. Even doing a TM search I have to use the name they call the idea to locate it. Is it just a waiting game now or what? I do not want to invest more money if this is "coming soon." How will I know?
« Last Edit: Nov 11th, 2007, 8:29am by sdmcxian » IP Logged
Bill Richards
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Re: When a search shows up empty but...
« Reply #1 on: Nov 11th, 2007, 6:22pm »
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Several points.
First, the product may or may not be "identical" to yours.  There may be features that aren't readily discernible.
Second, filing of the trademark may or may not relate to the conception (invention) of the product itself.
The product is not required to be marked "patent pending".  But, it sounds like you do not know for sure if a patent has been filed on the product.
Finally, you need to make your attorney aware of what you have found as it will probably have to be submitted to the patent office.  There is something called the "duty of candor" that your patent attorney should have explained to you.  If not, be sure that he does.  It's important, since if not done properly, it can jeopardize your patent.  When did you do your original search?  Did you search published patent applications, or just issued patents?  Now that you have more information, you might want to re-do your search.
« Last Edit: Dec 28th, 2007, 9:41am by Bill Richards » IP Logged

William B. Richards, P.E.
The Richards Law Firm
Patents, Trademarks, and Copyrights
614/939-1488
DJoshEsq
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Re: When a search shows up empty but...
« Reply #2 on: Nov 12th, 2007, 2:26pm »
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on Nov 11th, 2007, 6:22pm, Bill Richards wrote:
Several points.
First, the product may or may not be "identical" to yours.  There may be features that aren't readily discernable
Second, filing of the trademark may or may not relate to the conception (invention) of the product itself.
The product is not required to be marked "patent pending".  But, it sounds like you do not know for sure if a patent has been filed on the product.
Finally, you need to make your attorney aware of what you have found as it will probably have to be submitted to the patent office.  There is something called the "duty of candor" that your patent attorney should have explained to you.  If not, be sure that he does.  It's important, since if not done properly, it can jeopardize your patent.  When did you do your original search?  Did you search published patent applications, or just issued patents?  Now that you have more information, you might want to re-do your search.

GREAT ADVICE!  
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D. Joshua Smith, Esq.
Registered Patent Attorney
McDonald Hopkins, LLC
Cleveland, OH
216-348-5400
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