Defensive Patent Strategies

Patents and patent applications are very effective marketing tools and deterrents to competitors.

When a patent application is filed, a product may be properly marked as “patent pending.” This marking serves two very important functions.

In a general marking sense, the “patent pending” or “patented” markings indicate to consumers that the product is unique and cannot be obtained anywhere else. This has additional significance when a product is being offered to a buyer for a retail outlet, since it suggests that no other competitor is able to offer this product. The retail buyer has the unenviable task of selecting products that will sell in the retail outlet, but also enhance the retailer’s reputation with the consumer. By offering a product that is patent pending or patented, the retail buyer and the end customer understands that they get a unique product.

When a product is marked “patent pending,” and additional business device is invoked, that instills doubt in a competitor. During the prosecution of a patent, the actual extent of the patent claims is unknown, since the examiner and the patentee have not finalized their understanding of the scope of the patent. After the patent has issued, the product should be marked with the patent number and a competitor may rigorously analyze the issued patent to see how to build a product that does not infringe.

Before the patent issues, however, a competitor is always in doubt about how much coverage the issued patent will give the patentee. The competitor must weigh the costs of developing a competing product with the risk that his or her product may directly infringe when the patent issues. In many scenarios, the “patent pending” moniker is more effective as a business tool than the actual issued patent.