What can I do if another company is using my provisional patent? 4 Answers as of April 21, 2011

What do you do if a company uses your idea that you have a provisional patent for, before you get a chance to market it? Don't companies have to do a patent search before they change or add to their products?

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DANIEL NESBITT | Hasse & Nesbitt
You'd better contact a patent attorney and provide details.
Answer Applies to: Ohio
Replied: 4/21/2011
Handal & Morofsky LLC
Handal & Morofsky LLC | Anthony H. Handal
If actual infringement is occurring, it is important that the provisional patent be filed as a non-provisional. It is also important that the claims we carefully drafted so as to maximize the possibility of damages prior to issuance. After this is done, you should consider contacting the infringer and offering a license, if that is consistent with your business model. Otherwise, you may want to put the infringer on notice of your rights.
Answer Applies to: New York
Replied: 4/20/2011
Devon & Associates
Devon & Associates | Marcia A. Devon
The public does not have access to provisional patent applications. Application are maintained as confidential while the provisional application is pending. There is a one-year deadline from the date of filing the provisional application to file the complete utility application. The patent application may be published 18 months after the filing date of the completed utility application, but not if the inventor has instructed the USPTO not to publish it. Therefore, it is possible the public would not know about your patent application until the USPTO examines your application and approves it for issuance (many are not approved) and publication.

At this point, you need the assistance of a qualified U.S. patent attorney to examine your situation to determine whether the other company is infringing your existing claims (which are usually amended after the USPTO examines them). If there is infringement, you would need to file a "Petition to Make Special" to have the USPTO examine your case out of order, sooner than they normally would, because you have an infringer.
Answer Applies to: California
Replied: 4/15/2011
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
File a real patent - a utility patent, claim priority back to the provisional and put the infringers on notice of your filing. When the patent issues sue them.
Answer Applies to: Oregon
Replied: 4/14/2011
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