The patent process

Weinzimmer says that it takes three years on average for a patent to issue and it's almost guaranteed that the patent application will be rejected. However, he tells clients not to worry. He explained:

You cannot sue anybody until the patent issues, so although you get increasing protection from the moment you file, the protection increases as time goes forward. The initial 18 – 24 month waiting period is only to start the process of the government's examination It takes an additional six to 12 months to get the patent issued.

During that period, it’s guaranteed that your patent application will be rejected. The patent office will do their own search. They find the closest prior art they can find and then they tell you that they found your invention and you must argue that they’re wrong. That argument is generally done in writing – papers back and forth. However, you can schedule an examiner interview during that process. This would typically be a telephone interview with the examiner and perhaps the inventor as well.

He says that there are some people who are concerned that it takes a long time, but that he can reassure them with the following, “I say that it’s okay that it takes three years on average to get a patent to issue because you don’t want to sue someone who infringes on the patent right away.”

Discovering infringers

When you discover an infringer, it may be hard to prove that they’re actually doing anything that’s financially harmful to you if they've just started, according to Weinzimmer. He explained:

There may not be enough money involved to justify suing someone from a business standpoint. They have to be a substantial infringer. Otherwise, it’s not worth the company’s time and money to interfere.

If it’s just a grandmother making the invention on her kitchen table, why employ a lawyer to stop her? It’s just not worth it. You might be able to call her directly, even while the patent is pending, and negotiate a licensing deal. She may be very honest and say, “Of course, Sonny, I'll license it.”

However, if it's a big company, Weinzimmer says that you want to make sure that it’s very clear that they are in fact infringing, that they’ve got some substantial resources that have been clearly committed and that they’ve already done some substantial business. He says, “Those are the guys you want to sue for patent infringement . Those are the guys who are going to say, 'Hey, you want to stop me? I’ll see you in court. Good luck trying.'”