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[crossorb]

My company has filed a patent application a few years ago and it was published.  The competitor has tried to incorporate the technology which is covered by this patent application.  I know we don't have any right to sue the competitor because the application is not issued yet, but I would like them to stop using our technology.

1.  How can we stop them to use our technology?

2.  Is it good idea for us to send a "casual" cease and desist letter such as "I just want to let you know that we have filed the following patent application.  Just for your information.  Sincerely".  I don't wanna get in trouble.

3.  or it is better for us to wait until the patent is issued?

4.  Please let me know the "pros & cons" of the letter-sending now and later on.

Thanks in advance.

[JimIvey]

Given that you have no enforceable rights yet, you can't really tell them to cease and desist.  Well, I suppose you can, but you'd basis to doing so.

If your patent were issued, you'd have to be careful about being too hard or too soft.  If the letter is too hard, they can sue you for declaratory judgment, in essence asking a court to say they don't infringe or that your claims are invalid.  Then, you end up litigating at a time and place of their choosing, not your.  If the letter is too soft, it won't form the basis of a law suit against them and/or putting them on notice for willful infringement (which ups the stakes in your favor).  It's a very tricky thing to do, so I'd recommend using an attorney with some experience in that area.

If your patent application were published, there's a letter you can send even if your patent isn't issued yet.  You put them on notice of your published application and damages (money for their infringement) can be awarded from that date (before issuance) if the patent issues with substantially the same claims as published.  You still have to wait until your patent issues, but the damages can go back to when the other guys became aware of your published application.

I'd recommend getting help with that letter, too.

Regards.

[bleedingpen]

Given that you have no enforceable rights yet, you can't really tell them to cease and desist.  Well, I suppose you can, but you'd basis to doing so.

If your patent were issued, you'd have to be careful about being too hard or too soft.  If the letter is too hard, they can sue you for declaratory judgment, in essence asking a court to say they don't infringe or that your claims are invalid.  Then, you end up litigating at a time and place of their choosing, not your.  If the letter is too soft, it won't form the basis of a law suit against them and/or putting them on notice for willful infringement (which ups the stakes in your favor).  It's a very tricky thing to do, so I'd recommend using an attorney with some experience in that area.

If your patent application were published, there's a letter you can send even if your patent isn't issued yet.  You put them on notice of your published application and damages (money for their infringement) can be awarded from that date (before issuance) if the patent issues with substantially the same claims as published.  You still have to wait until your patent issues, but the damages can go back to when the other guys became aware of your published application.

I'd recommend getting help with that letter, too.

Regards.

Just a follow up on this, the damages are a reasonable royalty and the instances of parties winning a reasonable royalty have been far and few between.  There are of course potential pitfalls to sending out a publication notice letter.  You should speak with a qualified attorney to discuss those issues.