There are several stages of the patent process, each with a different degree of legal rights attached:
- Idea for invention but no patent application: no patent rights (but you can try to protect the invention as a trade secret).
- Patent pending: patent application has been filed but the patent is not yet issued. You have the right to begin manufacturing the product and put “patent pending” on it. Note that the USPTO may publish the application to give others notice (and after publication, you can no longer claim it as a trade secret).
- In–force patent: the patent application has issued as a patent, and the patent owner can bring a lawsuit for patent infringement against anyone who makes, uses, sells or imports the product without permission. Also, the patent becomes a public record and others cannot get a patent for the same thing.
- Patent expired: patent owner has no more rights to prevent others from making, using, selling or importing, but can still sue for damages for any infringements that happened while the patent was in force and within six years of the filing of the complaint.
If someone infringes on your patent, you can file a lawsuit in federal court to make them stop the infringement, and potentially collect damages for your injuries that occurred within six years of the filing of the lawsuit, but the court may not allow you to recover past damages for patent infringement if you waited too long after learning of the infringement to file your lawsuit. The court will usually consider anything over six years to be an unreasonable delay.
Legal Editor: Lawrence Goodwin and Dayrel Sewell, July 2016
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.