Patent Pending question

[MarionR18]

Can anyone get a patent pending even if it's not a patentable idea?

I have an idea for a specific use for a very common article.  I did a search online and noticed that someone set up a web page of just 1 page wanting to sell the exact article for the same new use.  It said to call her if you could do the manufacturing for her.  It also said that it is a patent pending device. 

My question is could someone hold a patent pending but not see it through but then no one else could take the idea?  She gave several ways of attaching this product to another product (which is the only change to the original which didn't require attachment).  Could I figure out another way of attachment and go ahead with getting my own patent pending or does it not even need a patent? 

Also, she is advertising this for the same use I had come up with.  Is she the only one who can sell a very common article for this new use?  The product is similar to an apron with ties to close it.  Would someone be able to get a patent for putting velcro instead of ties?  Would someone be able to then say because their product with velcro could now be put around the waist instead of the neck, it is patentable. 

I hope I made sense.  Any advice is greatly appreciated.

[JimIvey]

Can anyone get a patent pending even if it's not a patentable idea?

Yes.

I have an idea for a specific use for a very common article.  I did a search online and noticed that someone set up a web page of just 1 page wanting to sell the exact article for the same new use.  It said to call her if you could do the manufacturing for her.  It also said that it is a patent pending device. 

My question is could someone hold a patent pending but not see it through but then no one else could take the idea?  She gave several ways of attaching this product to another product (which is the only change to the original which didn't require attachment).  Could I figure out another way of attachment and go ahead with getting my own patent pending or does it not even need a patent? 

I think you believe (incorrectly) that patent pending has enforceable rights.  It doesn't.  A patent holder can only enforce patent rights when the patent is no longer "pending." 

You do not need a patent to make, use, sell, or import something.  In fact, a patent does not give any right to make, use, sell, import anything -- only the right to exclude others from doing so.  In short, if you have a clever idea, a patent is not required to proceed making and selling embodiments of the clever idea.

Also, she is advertising this for the same use I had come up with.  Is she the only one who can sell a very common article for this new use?  The product is similar to an apron with ties to close it.  Would someone be able to get a patent for putting velcro instead of ties?  Would someone be able to then say because their product with velcro could now be put around the waist instead of the neck, it is patentable. 

See above:  patent pending, in and of itself, conveys no rights to exclude others from making, using, selling, importing anything.  Of course, patent pending means there is an intent to get a patent and, with it, enforceable rights.  You might be precluded from making, using, selling, importing anything infringing her patent at some time in the future.

Substitution of one known fabric fastener for another is probably obvious, unless there's some reason to believe hook and loop (Velcro) fasteners wouldn't work on an apron.  If her idea is obvious, she shouldn't be able to get a patent from her application.  Of course, without knowing specifics, we can't opine as to the obviousness of her idea.

I hope that helps.

Regards.

[andromat]

I am not a lawyer, so anyone can feel free to correct me if I'm wrong, but from the inventor's perspective it might be interesting and useful for you to know that in the US, assuming the idea IS patentable and with certain odds on your side, you might still turn out to be the true inventor entitled to the patent, and not the other party, even though they filed for the patent first. Good luck!

[klaviernista]

To add to Jim's post, I would caution you about marking a product "patent pending" if you in fact know that it is not patentable (e.g., you know of invalidating prior art).  35 U.S.C. 292 imposes stiff penalties on parties who improperly mark their products "patent pending" for the purpose of deceiving the public.

That said, it is far safer from a marking perspective to assume that any application supporting a "patent pending" mark claims and contains patentable subject matter.

Best,

Klav

35 U.S.C. 292:

Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words "patent," "patentee," or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article the word "patent" or any word or number importing the same is patented, for the purpose of deceiving the public; or Whoever marks upon, or affixes to, or uses in advertising in connection with any article the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public - Shall be fined not more than $500 for every such offense.

[MarionR18]

Thank you for your replies.  I should have mentioned that I live in Canada.   If this product is made here and sold in the U.S., does that infringe on someone's patent in the U.S?

[bartmans]

Yes, for US patents on the product itself or for US patents on methods of making that product (if the same method is applied in Canada).

[JimIvey]

In the US, making, using, selling, and importing are direct acts of infringement.  So, if an item is made in Canada and sold in the US, the item would be at least imported into and sold in the US -- both direct acts of infringement.  In addition, indirect liability for patent infringement can be found if the purchasers use the item.

As for penalties for mis-marking items as "patent pending," I believe that covers marking items as "patent pending" when you have no patent application pending at the time of marking.  A bigger problem for filing an application that you have no reasonable belief that it claims patentable subject matter is perjury in signing a declaration that you reasonably believe the patent application does, in fact, recite patentable subject matter.

Regards.