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[Jonathan]

I have a small time client who now has competition. I think one of those 'we have a pending patent' letters, here is the publication no. should be sent. I would have someone else do that, the letter.

2 questions.

This is the right approach?

By putting someone on notice, a potential, future, patent infringement award would be based from the date of the letter?

Thanks.

[bleedingpen]

You must balance several factors before sending out this "pending patent" letter.

Are the claims in the published application going to issue like they are written or are you going to have to amend them?  If you are going to have to amend them, then you will likely lose out on provisional rights from 18 month publication.  It still may be worthwhile to put them on notice even if you think you won't get provisional rights because the competition may crumble and stop making the allegedly infringing product. 

Be mindful that the competitor is going to monitor your patent application and may likely submit art to you in a "poor man's opposition" setting if you put them on notice. 

Awards based on provisional rights are only a reasonable royalty and not lost profits or other types of damages that are obtainable after issuance of the patent. 

The instances of being awarded provisional rights are so rare that, at least to me, the "pending patent" letter's main focus is to try and get the competition to stop making the allegedly infringing product.