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We received a cease and decist letter from a lawyer for a…

We received a cease...

We received a cease and decist letter from a lawyer for a product, ice cream in a donut, that is still patent pending. We have never heard of the company & the product getting a patent just seems ridiculous. How should we move forward?

Lawyer's Assistant: What's the invention's purpose?

It's a design patent supposedly for rolled ice cream. Just the way it's served. They might as well patent rolled ice cream altogether while they're at it.

Lawyer's Assistant: Have you talked to a local attorney? Has anything been filed in court?

We only received a letter, & have not consulted with any attorneys yet.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

That's all we had in mind. Just want to know our options moving & the best steps to move forward. We believe this is all ridiculous & there's nothing proprietary about their patent.

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Customer reply replied 4 months ago
Here is the letter we received from this company. NEVER heard of them ever. It's just a ridiculous idea that putting ice cream into a doughnut can be patented.
Answered in 23 minutes by:
3/23/2018
Attorney Wendy
Category: Legal
Satisfied Customers: 1,196
Experience: Member at Keefer & Keefer LLC
Verified

Hello. My name is ***** ***** I am an attorney. I am working on a response to your question and should have that to you shortly.

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Customer reply replied 4 months ago
Awesome, thank you!

First, I have to admit this seems silly on first blush. The unfortunate thing is that it can be difficult to determine the likelihood of success of a design patent application. Generally, patents must be something new that is useful, novel and non-obvious. The biggest issue with this is the non-obvious and new element. That said, if this company also holds other patents that may cover things with an earlier date, it becomes risky - until the patent office rules on the application - to count on the application's being denied. In some ways it is more difficult to evaluate your options in a "patent pending" situation than when an actual patent has been issued. The reason for that is that until the patent issues they cannot file for any patent infringement, but if the patent is issued and approved they can sue anyone who was on notice of the pending patent and if the continued use was intentional (which it would be here since you received this letter), they would get statutorily set or proven damages and then get to multiply that by 3 and also look to you to pay their attorneys fees. Patent infringement lawsuits are incredibly costly even if you win. It is hard to say whether this patent will issue, but the safer course may be to change the ice cream dish you are serving to something different.

There are so many ways to serve ice cream and this one seems pretty obvious to me and not patentable, but I am not the person reviewing the patent application and these types of claims are just so risky and costly that if you can avoid them, it makes sense to do so. Just think, if they actually patent this design, perhaps you can come up with the next patentable ice cream service design.

I hope this is helpful. If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Customer reply replied 4 months ago
Makes sense. Thank you Wendy! This company sells ice cream in Pennsylvania so we HIGHLY doubt we're damaging their sales from here in Minnesota, but those lawyer fees are scary.We did some further research online & we found out we are able to submit a third-party preissuance submission to challenge their patent claim. Is this something that is practical to do while waiting to see if the patent is granted?

It is something to consider; I would - because this field is so specialized - consider speaking with a local attorney who does patent work to help with any submissions to make them valuable and not potential wastes of time simply because of some missing information and the like. And, I would certainly cease promotion of your similar ice cream while considering your options and to keep from receiving additional mail from the attorneys on that issue. Yes, this is the downside to technology and global information - in the past, an ice cream shop in one state would not be any threat to one in another unless and until the other had a nationwide or regional name recognition (e.g., Baskin Robins).

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Satisfied Customers: 1,196
Experience: Member at Keefer & Keefer LLC
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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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