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I have a patent pending. Can it be infringed upon?

Palo Alto, CA |

In December 2008 I received notice that my design patent was listed with the Patent Office as pending. My question is this: Given its status, can a person now submit an application for a design patent that infringes upon my pending patent?

Attorney Answers 3

  1. Strictly under your facts, NO. Simply filing a patent application covered under a previously filed patent application does not constitute infringing activity. Patent infringement requires another to make, use, or sell a patented technology. Filing patent applications does none of these. Further, until your patent application is allowed and issued, you may not enforce any rights against potential infringers. So, they until you have an issued patent, a person who makes/uses/sells your technology is not infringing. Good luck

  2. If you have reason to believe that someone is would be infringing (e.g. making, using, selling, or importing) your patent claim (design patents only have one claim) if it were to issue, you may be entitled to file a "petition to make special." Under some circumstances this may help to expedite the patent prosecution process. Since your application was filed recently you may want to look into filing such a petition.

  3. I think what you're asking is, now that you've filed your patent application, can someone ELSE who files later also get a patent on the same thing? The short answer is no - your application can be rejected under existing PRIOR art, but a later filed patent application would not constitute prior art (in 99% of cases).

    **This post does not constitute legal advice, nor does it create any attorney-client relationship between Sadiq Ansari and any other individual or entity.**