Should Provisional Patent Pending Products be on the web?

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Patent Pending Products on the web


Searching on the web for instances of patent pending products for sale without pictorial or detailed narrative descriptions was unsuccessful.  Google Searching for patent pending heat exchangers yields 82,400 results.  A lot of the information on the web is detailed as shown in a few examples in the appendix.

Google searching patent pending oil and gas products yields 7,400,000 results. Large publically traded companies and the tiniest of companies depict their patent pending products on the web.  Veolia has patent pending products on the web.  General Electric publishes videos about their new patent-pending technologies:  Small companies put their patent pending products on the web too.

Adrian Zettell  puts his patent pending product directly on the web.  Adrian Just made a sale to Schlumberger too.  It is simple stuff he has on the web.  Adrian describes the materials in his invention and illustrates the hose clamp assemblies holding it together. He describes well enough that making his product from the pictures and descriptions is not difficult.

Large and small companies put their patent pending products on the web.  A general Google search for patent pending products shows more than six million results.

It is clear that our rights are not enforceable until a patent is issued.  However, we have no assurance that a patent will be issued, and if it is not, any protection is gone.  I read that a provisional patent application is excellent protection from poachers because it is secret, and being secret, a potential competitor does not know the extent of the claims and could be infringing.  Companies with anything to lose (goodwill, money, reputation) are unlikely to steal our patent pending ideas and products.

A review of the online articles about publishing and marketing patent pending products:

“Before outlining some strategic options, I should mention that the magnitude of fear of showing others an invention at this stage is often overblown. In my experience, it is rare that a company will knock off an invention at this stage[1]

Before the patent issues, however, a competitor is always in doubt about how much coverage the issued patent will give the patentee. The competitor must weigh the costs of developing a competing product with the risk that his or her product may directly infringe when the patent issues. In many scenarios, the “patent pending” moniker is more effective as a business tool than the actual issued patent.[2]

When your competitors see the words “Patent Pending” at a trade show, on your new product, on your web site, or in your sales literature, they will naturally wonder about the scope of your patent application. But if that application has not been published its contents are confidential, as long as you maintain them so. Your patent application will not be discoverable for at least eighteen months or more, and even then, prosecution could impact what ultimately may issue. So your competitor’s fear of the unknown may provide you a temporary but substantial advantage in the marketplace. Use it well[3].

Filing a provisional patent application that adequately describes the invention will establish priority and satisfies the need to act swiftly under first to file rules. A well prepared provisional patent application is your best friend in a first to file world.[4]

Assuming you have filed an appropriate provisional patent application you can market the invention without fear of losing patent rights, generating cash to proceed with development or further patent activities.  In other words, the provisional patent application is an interim step along the road to a patent.[5]

All this is not good for the offending company.  By the time the infringement case is over, that company may have to pay triple damages, have to quit selling the product, and lose all its development and marketing costs.

For this reason, you are likely to find that most companies are not likely to rip off your “patent pending” invention if they believe you have a good chance of eventually getting a patent.  These companies will recognize that it is better business to simply buy or license the patent rights from you than steal the idea from you and face the consequences.[6]

As good practice, you should only publicly disclose your invention after you are patent pending. However, it is important to remember that the patent application only “protects” the invention that is disclosed in the patent application. If you change your invention design and that change is not disclosed by the patent application, then that modified invention is not protected. It is possible for you to file another patent application to protect the new design.[7]

In summary – the short answer – go ahead and show it.  If you have any more questions please contact me at elliot AT[8].”

Google searches yielded no attorney blog or article that supports our attorney’s position of not disclosing the invention on the web.  For a bit of gentle fun:

One can make a case against anything. Like making an argument against walking across the street for fear of an accident. The odds of a pedestrian getting hit by a car: 000232[9].  Patent litigation[10]  occurred in about 3000 cases in 2013.  There were 600,000 patent applications in 2013[11].  One-half of one percent file a case.  Only 3.6% of these go to trial.  96% settle[12].  Extrapolating; .00036 of the cases require the full cost of court litigation, a slightly bigger risk than crossing the street.

90% of an invention’s success is marketing it and getting it out.  “[T]he idea is about 10 percent of this exercise; 90 percent of it is the marketing of it, getting it together, getting it out.” (Richard C. Levy, inventor of Furby quoted in Liane Hansen,  All Things Considered (NPR), “Profile: Independent toy inventor Richard C. Levy,” June 18, 2002)

We cannot stop the Chinese from knocking off our invention, but we can keep knockoffs from our shores.  Chinese patent protection is getting more robust[13].   It seems unlikely that the Chinese or another foreign knock off originators become interested in our product until we make a market.  We have international patent protection.  Chinese patent applications are not expensive.  So, perhaps we get one in China in a couple of years?  We have the Chinese law (I think treble damages are in the works) and US law to protect ourselves.

My preference is to use Adam’s approach.  It is simple, inexpensive and it works.  He is getting orders.





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Categories: Sales, Strategy

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