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On Guard!

When your patent is under attack, these tips can protect it from infringement.

No subject makes an entrepreneur's blood pressure rise more than patent infringement. Having spent hundreds of thousands of dollars defending my patents, I've learned some valuable lessons. Let me share them with you.

If you own a patent and you become aware that someone else's new product or process is alarmingly similar to your own, chances are your patent is being infringed upon. That said, let's clear up some important misconceptions about infringement.

First, the U.S. Patent & Trademark Office can't take any action on your behalf regarding patent infringement. That's not its job. You, the patent holder, assume the full burden for stopping infringers and collecting any damages.

Once you file a patent application with the Patent Office, you are given the right to claim "patent pending" status on your product. However, your product can be copied legally--yes, legally--until the date you are awarded a patent. From that day on, any identical or strikingly similar manufactured product is infringing on your patent. Unfortunately, you cannot collect damages for infringement during the patent-pending period. That makes bringing your product to market tricky.

With that in mind, it's no secret why it's so important to keep your patent filing date confidential. If potential infringers know you just filed your patent, they probably also know it will take approximately two years to be issued. That gives them two years to copy your product before you can do anything about it. If they don't know when you filed, infringers may not risk the time and effort trying to knock off your product.

One solution to this patent-pending marketing problem is to determine the approximate issue date of your patent (and keep it confidential) and put your product on the market three to four months before then. An infringer will not want to spend time and money on production only to have to stop once your patent is issued.

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This article was originally published in the August 1997 print edition of Entrepreneur with the headline: On Guard!.

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