Patent Law Process: Increasing Protection From The Moment You File
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, its 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 theyre 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 its okay that it takes three years on average to get a patent to issue because you dont want to sue someone who infringes on the patent right away.
When you discover an infringer, it may be hard to prove that theyre actually doing anything thats 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, its not worth the companys time and money to interfere.
If its just a grandmother making the invention on her kitchen table, why employ a lawyer to stop her? Its 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 its very clear that they are in fact infringing, that theyve got some substantial resources that have been clearly committed and that theyve 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? Ill see you in court. Good luck trying.'