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As of Feb I hold a "Patent Pending status" on a utility patent.

(I went the route of...
As of Feb I hold a "Patent Pending status" on a utility patent. (I went the route of a provisional patent first and just before the one year anniversary, I contacted a patent attorney and completed the process (proper search, drawings, carefully worded description, etc)After many (50-100) hours of trying to find an American company to make the item, I gave up and went to Alibaba.com with the idea and I had 4 offers to make it within 2 days. It took a while to actually get the product made the way I wanted and to my specs. I am happy with the end result. I am now looking to market the item. However, I noticed that E-Bay has offered a very similar item from several sources. This was non-existant during the time of my provisional patent. Is there anything I can do to force E-Bay to pull the items that infringe from the website?
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Answered in 1 minute by:
4/30/2013
Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3,467
Experience: Experienced in intellectual property law
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Alex Reese :

hello

Customer:

thanks for taking myu question

Alex Reese :

your welcome.

Alex Reese :

with a pending patent, you don't have any enforcement rights (not until it is granted) so until them all you can do is put them on notice that you have a patent and that as soon as it is granted such products will be considered by you to be infringing

Alex Reese :

so it's really just a warning, but nothing you can do legal (e.g. you can't file a lawsuit based on a patent pending)

Customer:

I am told that the patent office sometimes takes 2 years to finalize the process and issue the patent number?

Alex Reese :

that's right, there is a slow back and forth process with the PTO

Customer:

Once offered, is there any way I can come back onthem for selling in the meantime after being warned?

Alex Reese :

if you got your patent 2 years from filing, that would be fast

Alex Reese :

"once offered"?

Customer:

 


So of what value is the patent process "

Customer:

??

Alex Reese :

I don't know what you mean by "once offered"

Alex Reese :

offer what?

Customer:

I'm sorry, my fingers got ahead of my thought process... I meant, once the patent is received...

Alex Reese :

once the patent is "granted" aka "issued" then you have the enforcement rights

Alex Reese :

and can go back to them

Alex Reese :

but it's a slow process, which is a common complaint

Customer:

but to go back to them means only enforcing from that point forward?

Alex Reese :

yes but in the event of a lawsuit you could potentially get damages from the time you gave them notice

Alex Reese :

actually I take that back, that only works for an issued patent...you would get damages only from the time it was granted

Customer:

Is there anything I can say, when I give them notice that is stronger or better than just my best thoughts at the time?

Customer:

Any key words?

Alex Reese :

well the essential warning is that your patent is pending and can issue at any time and at that moment the products will be infringing (although they would know that's not so true since it is a slow process)

Alex Reese :

but as of now the patent is not published (which happens 18 months after filing) so they have nothing to go by unless you send them the filed application

Customer:

what about going back on them from the time of notice.. any words that are better than others?

Alex Reese :

also, patents change during prosecution so the final form is unknown

Customer:

this is very basic...

Alex Reese :

unfortunately I don't think a letter at this point will have much affect

Customer:

simple but effective and very useful... nothing on the market in hardware stores that are even close... this E Bay is the first I've seen

Alex Reese :

patent applications are not public and they would have no basis to evaluate your claim unless you actually got into a dialogue with them and provided them your patent application...


 

Customer:

My goal is to try and market it to hardware stores and HOme Depot/Lowes type stores....

Alex Reese :

you should do that, and indicate your patent pending


 


 

Customer:

So is it even worth writing to them "giving them notice"?

Alex Reese :

and let them know that once your patent is granted you will have the exclusive rights


 


 

Customer:

You are still saying to write andnotify them... should I use certified mail?

Alex Reese :

yes you should, it worth a try, I just think the chances of them taking action are low


 

Alex Reese :

because the patent is only pending


 

Customer:

A;ex, thank youf or the advice... if you can think of anything else that mnmight help, I'd appreciate a follow up note... in the meantime, I am very pleased with your answerr and will be marking "excellent" in the rating

Alex Reese :

best of luck!

Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3,467
Experience: Experienced in intellectual property law
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Yes will do. One word of advice is to make sure you monitor the correspondence address that was listed in the patent application so that you get all the PTO communications and respond on time.
Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3,467
Experience: Experienced in intellectual property law
Verified
Alex Reese and 87 other Intellectual Property Law Specialists are ready to help you
Ask your own question now
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Alex Reese
Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3,467
3,467 Satisfied Customers
Experience: Experienced in intellectual property law

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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