How to Identify Patent Pending Infringement & What to Do


Last updated: 5 months ago

This guide will explain what patent infringement is, how to identify it, and what you can do about it. So, let's get started! But before we do, let's have some little background information about patents.

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Patent-pending infringement is an issue that can have devastating consequences for businesses and inventors. An invention is protected by patent law once a patent application has been filed with the United States Patent and Trademark Office (USPTO). Moreover, the invention is also protected from being copied or used by others for 20 years from the patent application's filing date.

 When a patent holder believes that their patent is being infringed, they can file a lawsuit in federal court. However, an infringement lawsuit can be costly and time-consuming, so it is essential to understand what constitutes infringement before legal action.

 This guide will explain what patent infringement is, how to identify it, and what you can do about it. So, let's get started! But before we do, let's have some little background information about patents.

What is a Patent?

A patent is a form of intellectual property granted to an inventor to protect their invention from being copied by another party. The patent gives the inventor the right to stop anyone else from making, using, or selling their invention without permission.

Learn more on intellectual property here

What is Patent Pending?

When a company files a patent application with the United States Patent and Trademark Office (USPTO), that application is given a designation of "patent pending." The phrase "patent pending" informs the public that the company has a patent application pending at the USPTO.

The phrase "patent pending" can also be used to notify potential infringers that the company has a patent application on the invention and may be liable for damages if they infringe on the pending patent.

What is Patent Infringement?

Infringement occurs when someone copies or uses an invention protected by a patent without permission from the inventor. This can be done knowingly or unknowingly and can lead to legal action.

What is Patent Pending Infringement?

The American Inventors Protection Act of 1999 (AIPA) protects patent applicants from infringement of their patents. Patent-pending infringement is an intellectual property infringement where a party uses or sells a product covered by a patent application. However, at this point, the patent has not yet been granted. This is in contrast to using or selling a product covered by an already granted patent.

Types of Patent Infringement

According to US law, there are various ways to infringe on a patent. Some of the popular ways include.

  •  Direct infringement: It happens when a party without a patent does something covered by the claims of a patent.
  •  Indirect infringement: It includes importing, selling, or offering to sell a product that infringes a patent, as well as supplying or using a patented invention in the course of business.
  •  Contributory infringement occurs when a party knowingly induces, causes, or materially contributes to the infringing conduct of another.
  • Literal infringement occurs when a defendant copies all or a substantial part of a patented invention.
  •  Willful infringement: This happens when a defendant knows about the patent and still infringes it anyway.
  •  Induced infringement: Occurs when a defendant actively induces someone else to infringe a patent.

How to Prove Patent Infringement

There are various ways to prove that a product or process has infringed on its patent. Let's take a look at some of the most common.

 1. Conducting a patent search

 You can achieve this by searching the United States Patent and Trademark Office (USPTO) database or using a private patent search firm. Here, you can find patents previously granted patents, as well as those that are still pending. You can also use this information to research the patentability of your invention.

 2. Reviewing the patent issued from the patent application

 Another way to identify patent infringement is by reviewing the patent application itself. You can do this by visiting the USPTO website and searching for the patent application by its application number or inventors' names. The patent application will list the specific claims of the invention, and you can compare these claims to the product or service that is allegedly infringing on your patent. By comparing the claims of a patent to products on the market, you can get a good idea of whether or not your product or service infringes on the patent.

 3. Determining if there is an element of risk in producing and selling the product

Before producing and selling a product, it's essential to determine if there is an element of risk in doing so. This includes risks such as patent infringement. If you have any concerns about patent infringement, you should ensure to consult with an attorney.

 4. Consulting with a patent attorney if there is any concern about patent infringement

 If you have any concerns about the infringement of your patent, consult an attorney. They can help you determine if there is an issue with your patent applications and, if there is, help you take the appropriate steps to resolve it. Here is a guide on how you can find the best patent attorney

What Measures Can I Take after Confirming Infringement of My Patent?

There are a few steps that you can take after confirming patent infringement.

 1. To start with, you should determine whether the infringer is aware of the patent. If they are not aware, sending a cease-and-desist letter may be enough to stop the infringement. However, if the infringer is aware of the patent, legal action may be necessary. Gathering evidence of the infringement will help prove the patent infringement. Such evidence can include pictures of the products, diagrams of how the product infringes on the patent, and witness testimony.

2. Filing a lawsuit is the next step, and the patent holder may receive financial compensation if they are successful. It is important to note that the patent holder may be responsible for legal fees even if they are not initiating the lawsuit.

 3. Finally, it is vital to keep in mind that the patent holder may need to license their patent in order to pursue legal action. Therefore, the patent holder may need to permit another company to use their patent to sue another company. The process can be costly and time-consuming, so weighing the pros and cons is crucial before taking legal action.

RELATED ARTICLE: Protecting Intellectual Property: A Complete Guide


When it comes to pending patent infringement, knowing what to look for is necessary to help identify whether someone has infringed your patent. Once you've identified an infringement, it's crucial to know what to do next.

 If you believe that someone is infringing on your patent, you should consider taking action. You can search the USPTO database to see if the invention is patented. If your patent is infringed, try reaching out to the infringer and know whether they're willing to work things out. If they are not, then you can take legal action. However, consult with an attorney first to help determine the best course of action.


FAQs Section

Q: What are the consequences of patent-pending infringement?

A: The consequences of patent-pending infringement depend on the circumstances. If the infringement is willful, the infringer may be subject to enhanced damages and attorney's fees. In some cases, the infringer may also be enjoined from continuing the infringing activity.

Q: How do I know if someone is infringing my patent pending?

A: You should consult with an attorney to determine whether someone is infringing your patent pending. The attorney can review the patent application and compare it to the allegedly infringing product or process.

Q: What can I do if I believe someone is infringing my patent pending?

A: Contact an attorney to discuss your options. The attorney can help you file a lawsuit against the infringer or negotiate a settlement.

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