To Early for Infringment Letter?

[lepoppet]

What is the name of your state? CA

Hello,
I filed a Provisional Patent on March 29, 2003 and received confirmation. In April 2003 I started selling my tool and I labeled all advertisements, brochures and the tool itself as "US Patent Pending".

I am currently working on my original design patent and I plan to file it this June.

I have heard through various newsgroups that another party is launching a similar tool (although I have not yet seen the tool and have not been able to determine the degree of similarity). This party is fully aware of the fact that I have a provisional patent and of my intentions to patent my item.

My question is this....Once the other party launches their product and I can determine that there is a possible infringement issue, should I send them a "polite letter" stating my concerns about "design and method simularities" (I'm going to avoid using the word "infringement"). Or should I just keep my mouth shut, do my own thing and take action in 2-3 years once the patent is officially issued?

Any advice to a new inventor would be appreciated. If anyone is interested... my tool is on my website at www.LePoppet.com. Just click the Bead Roller button.

Thank you

Maria

 

[divgradcurl]

My question is this....Once the other party launches their product and I can determine that there is a possible infringement issue, should I send them a "polite letter" stating my concerns about "design and method simularities" (I'm going to avoid using the word "infringement"). Or should I just keep my mouth shut, do my own thing and take action in 2-3 years once the patent is officially issued?

You could send a letter, but it probably wouldn't do any good. Until the patent issues, you have exactly nothing, so they could simply ignore your letter and go about their business. For all they know, the patent will never issue, so why stop now.

A patent application is just that -- an application -- and until the patent actually issues, you have nothing you can enforce against another. Infringement cannot occur until the patent issues, so even if another person starts manufacturing an identical tool today, they wouldn't be liable for infringement until the patent actually issued; if they stopeed selling and manufacturing the product the day before your patent issued, they would not have infringed anything. If they keep manufacturing it after your patent issues, then you can sue them for infringement.

 

[Bakins]

Do keep in mind that with someone starting to produce a product based on your idea. You may qualify for special patent status under 708.02 CFR Petition to Make Special. This allows an applicant to apply for special status and basically speeds up the entire patent process for you. However this only applies if and when the actual product is on the market and being sold or used, and actually infringes upon your claims. This information doesn't actually help you in regards to them making your product, but it can be a huge help to you in a legal battle. By all means find a qualified lawyer to assist you in this matter, if and when the infringing product comes onto the market.

Here is the main part of the CFR where this is addressed:


II. INFRINGEMENT
Subject to a requirement for a further showing as may be necessitated by the facts of a particular case, an application may be made special because of actual infringement (but not for prospective infringement) upon payment of the fee under 37 CFR 1.17(h) and the filing of a petition accompanied by a statement by the applicant, assignee, or an attorney/agent registered to practice before the Office alleging:


(A) That there is an infringing device or product actually on the market or method in use;

(B) That a rigid comparison of the alleged infringing device, product, or method with the claims of the application has been made, and that, in his or her opinion, some of the claims are unquestionably infringed; and

(C) That he or she has made or caused to be made a careful and thorough search of the prior art or has a good knowledge of the pertinent prior art.


Applicant must provide one copy of each of the references deemed most closely related to the subject matter encompassed by the claims if said references are not already of record.

Models or specimens of the infringing product or that of the application should not be submitted unless requested.


Here is a link for you to refer to as well.
http://www.uspto.gov/web/offices/pac/mpep/documents/0700_708_02.htm