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Can you sell a patent pending?

Los Angeles, CA |

I have applied for a utility patent, but would like to know if I am able to sell the rights to the patent that has been filed for, but waiting on approval.

Attorney Answers 4

  1. Yes, with full disclosure that it is waiting approval and the warning that it may never be approved. Paperwork will have to be filed with the USPTO re the assignment.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

  2. Sure. What you're selling is a patent application -- not a patent.

    If the application has already been published, then you could also sell any choses in action that may have already arisen to enforce the patent if the claims it will ultimately have have been infringed. The buyer will also likely demand any any all documents relating to the conception and reduction of practice of the invention that's claimed. Also, you should include a provision in the agreement that the buyer has reviewed the prosecution history of the application and is fully aware of all actions and assertions that have been and which have not been made. As I hoped you appreciate, your potential sale of your patent application is not simple and you should not draft up an agreement yourself. Good luck.

  3. Yes you can, but there would have to be a lot of disclaimers and warranties. You're best off hiring an IP lawyer to get this done.

    Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

  4. Yes, this is not uncommon. If you are solo-inventor or a business that doesn't have the facilities/money/interest to bring your product to market, it may be easier to find a buyer before your patent issues. I have seen cases where established companies were more inclined to purchase the rights to a patent application while it is still pending because the company can then step in and take over the prosecution of the patent application.