Would 'Patent Pending' Discourage YOU?

For what it is worth, it would discourage me. There are plenty of niches out there and a patent pending says don't bother it's too much like hard work.

No. I would look for the patent filing and see what it said.

Then concentrate on making it in sufficient number and flogging as many as possible before the copycats jump on the bandwagon.

Probably not.

Regards, Martin brown

Interesting viewpoint. Thanks! I don't think the USPTO even publishes provisional apps, so there'd be no way to check it. That said, it should be fairly obvious that it couldn't possibly qualify for a patent, even without the research.

I already have the provisional app ready, so I most likely file it. (It's cheap). But I am curious to hear more viewpoints on whether patent-pending wording is truely viewed as an obstacle by would-be competitors.

I was almost ready to drop it in yesterday's outgoing mail, when it occured to me:

1) Why file now? All that does is start the 1-year clock ticking before you have the prototype ready to show prospective customers! File that provisional at the very last moment.

Trust me, it's a really weird way to think when you're also (currently) embroiled in a separate (much more profitable!) utility patent prosecution at the USPTO You can easily get focused on a meaningless outcome - for example, would I really care if the provisional damaged any ability to claim the earlier filing date in a later filed non-provisional app? Answer =3D No. Since I have no desire to file one anyway. That $100 would just buy the legal right to say "patent pending" and that's it.

Oh, and I meant to say - you're absolutely right about being first on niche solutions. By the time you take 50% of a niche, there's nothing but scraps for would-be competitors anyway. That's probably the best disincentive there is. You hit the nail on the head!

Also be very careful what you think is a niche solution. IBM originally estimated the global market for computers to be no more than a dozen.

Later their failure to understand just how well the IBM-PC would sell despite its appalling hardware design made Bill Gates very very rich.

We have usually relied on trade secrets even for stuff that would be patentable. If you can lock down competitors from using a new or novel technology then it is worthwhile. If you have deep enough pockets to take action. One competitor produced an instrument where the entire high vacuum side was floated at 8kV because we had a blocking patent on hardware to enable maintaining a plasma only at 8kV. Some of the early experiments on this kit were interesting (Chinese usage).

I particularly object to USPTO giving out software patents like confetti. Xerox holds a patent on the identity X + (-X) = 0 ...

Regards, Martin Brown

, y a

We are fighting a USPTO 103 rejection (obviousness) right now for a highly lucrative patent. The Examiner came back and said our invention was obvious because she could take pieces and parts from 3 other patents to reach our invention.

Of course, the 3 prior art references she's relied on can't be combined, mechanically or functionally; they each teach away from their combination, there is no suggestion or motivation in the prior art to combine them, and even if you could combine them (mechanically or functionally), it would still not enable or disclose our invention. (Think apples and meteorites, and actually, I'm not even sure that comparison does it justice!) Furthermore, the suggested combinations would render the prior art unsuitable for its intended purpose, and/or would result in a totally non-functional device!!

That said, we must still "fight" this battle at the USPTO, else the application is considered abandoned!

So yeah, it does sort of irk me when junk patents fly off the shelves at the USPTO, when legitimate Claims take so much effort!!!

When I was about 6 years old I remember coming across the phrase "Pat. Pending" printed on all sorts of different items, from anti-roll triangular shaped erasable pens, to my Dad's new headphones, to nickel-cadmium battery chargers. I thought this Pat Pending must be a remarkable man, surely on par with Edison, to be responsible for all these wonderful inventions.

He was also immortalised as a cartoon character in "Whacky Races"

Regards, Martin Brown

The more usual term is "Patent Applied For." I think "pending" means it's further along in the process.

Why not just be totally dishonest and say "Patented"? Saves $100.

John

That's absurd. Pat was a woman.

John

If you think there's prior art that prevents your gadget from being patentable, that's the same as believing someone else invented it first. Filing a regular application under those circumstance is a felony, 18 USC 1001. I don't know specifically about a PPA, but I doubt it's different.

Cheat on your RPA and you (can) go to jail. Cheat on your taxes, and you're a cabinet member.

I can imagine a legal way to achieve your aim, but it's best left unsaid--

"I have ever deemed it more honorable and more profitable, too, to set a good example than to follow a bad one." --Thomas Jefferson

-- Cheers, James Arthur

103 rejections are the Examiner's first 'bid', the device whereby they compel you to lay out your detailed case for novelty. It's standard practice, don't take it personally.

-- Cheers, James Arthur

Good idea. mpm could change his name and mark all his stuff (C) Pat Pending. That would sure confuse people!

-- Cheers, James Arthur

I had one patent examiner declare a design as "not novel". I allowed, literally, "You're just too stupid to understand it." The patent was issued :-) ...Jim Thompson

--
| James E.Thompson, CTO                            |    mens     |
| Analog Innovations, Inc.                         |     et      |
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| Voice:(480)460-2350  Fax: Available upon request |  Brass Rat  |
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I love to cook with wine.     Sometimes I even put it in the food.

Having looked at the prior art, I think there are several reasons it likely wouldn't get a patent:

1) There are several other patents, now expired, that would seem to anticipate the invention ("seem", not "definitely would"). 2) Even if not identically disclosed in the prior art, to me, it still seems obvious ("seems", not "definitely is"). 3) To the extent existing patents are still in effect, those too seem to be invalid over the prior art, and likely also obvious. ("seem", not "definitely are").

While I may not personally think the idea deserves a newly minted patent, who am I to say what crazy course of action the USPTO may or may not take? We've all seen our share of junk patents before. So why not this one?

And how would this be any different than filing a regular patent on something I truly thought deserved one, when in truth, I just missed the killer prior art in the initial patent search? The result is the same: The patent is pending, and yet one will never grant.

I don't see any legal ramifications to filing, unless I purposely withheld information -- but even then, the disclosure of prior art is NOT mandatory for a provisional application. In fact, the USPTO doesn't even read provisional applications until the real (non-provisional) is filed later. And the law says I can use "patent pending" if the provisional is filed. And surely I am entitled to file if I have even the slightest glimmer of hope that a patent will grant (and maybe even if I don't?). The penalty, (if there is one), is losing your $100 filing fee for chasing something that ultimately isn't patentable.

So in short: I didn't make the rules - but I don't have any problem living by them either. :)

Didn't Jefferson own slaves, too?

Nah, I'm just needleing you... Wish we had more politicians like Jefferson today - we could sure use them!

Another very wise friend of mine once said: You can only have the ethics you can afford. (But he was an attorney, so maybe we have to discount that a little bit....)

-mpm

I just read the USC you provided. (Thanks)

Frankly, I don't see how that applies to a USPTO provisional application -- particularly when the USPTO doesn't even require an Oath executed with the application. Even if 18USC did apply, the lack of an Oath requirement would surely undermine any enforcement effort.

See this link:

al_app.htm

-- "Unlike a nonprovisional patent the provisional patent is filed without any formal patent claims, oath or declaration, or any information disclosure or prior art statement. What must be provided for in an application for a provisional patent is the written description of the invention (1) and any drawings (2) necessary to understand the invention."

Must be an MIT thing.... That's exactly what my co-inventor wants to say to our Examiner!

(Class of '66, I think? So maybe a couple years behind you.)

, a

The difference is between a lie and a mistake--your belief.

It's the inventor's affirmative duty--and The Patent Office trusts you--to only file on inventions you, as, the inventor, think are valid. It's the honor system. Then they make you swear to it. Lying to the Patent Office is illegal.

-- Cheers, James Arthur