Should I wait to market my product until my patent is accepted? 5 Answers as of December 07, 2010

My patent has been pending for over 6 months, and I really want to start marketing my product. Should I wait until my patent is accepted, or can I go for it since I already filed?

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Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
There are pros and cons of doing it either way. In my opinion, I would start marketing it right away. What happens if someone beats you to the punch before your patent is allowed (assuming it will be allowed)? Once the market is shot, the market is shot.
Answer Applies to: Oregon
Replied: 12/7/2010
Handal & Morofsky LLC
Handal & Morofsky LLC | Anthony H. Handal
It is probably better in most cases to go forward with commercialization and rely upon a well-written patent position. The time that a patent is pending can sometimes be long, particularly if you're trying to maximize your position.
Answer Applies to: New York
Replied: 12/3/2010
Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
That depends on the invention. As soon as you begin marketing, or otherwise telling the world about your invention, you invite competitors. That's a problem in markets where there are low barriers to entry (e.g., the product can be designed and marketed easily, rapid acceptance in the marketplace), or the market is small and can be readily saturated. In those instances you will likely find yourself way behind the eight ball visvis competitors. On the other hand, if the product has a high barrier to entry (e.g., costly R&D, costly rollout, low rate of early acceptance, etc) and the market is large, it might be a very good idea to allow the competitors to pry open the market for you. This also depends on how broad your patent claims are likely to be, and how much you have in resources to enforce the patent. Unless your claims have tremendous commercial importance, even a contingency attorney will likely require you to pay $100K or more in out of pocket expenses.

Note that 6 months into the game is still very early. Unless you filed for accelerated examination, are using one of the patent prosecution highways, or have some other means of getting a patent issued quickly, it may well take another 2.5 to 5 years or more before your patent is actually issued.
Answer Applies to: California
Replied: 12/3/2010
Kafantaris Law Group
Kafantaris Law Group | Theo Kafantaris
Waiting for a determination of patentability may take 3 years or more. If you have a patent application filed with the USPTO, you are patent pending, and you should feel free to market your invention.
Answer Applies to: California
Replied: 12/2/2010
Rhema Law Group
Rhema Law Group | John D. Tran
No, there is no requirement for you to wait to begin marketing and selling your product while your patent is pending. Many products are sold and marketed while under patent pending status. However, you have no rights t stop others from making, selling or using your invention until your patent actually issues.

Before you do launch your product, I would still recommend you sit down with a patent attorney to discuss your options and to get some counsel.
Answer Applies to: California
Replied: 12/2/2010
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