At what time is a patent enforceable?

Question

I am faced at the moment with a potential US patent that might be enforceable in the future. It is currently undergoing a review process and the outcome is yet undetermined. I would like to know whether if I infringe on the potential patent before it is granted:

• Will I be liable if it is granted (or perhaps until it is decided that it will not be granted), assuming I would cease all infringing activities the moment it is granted?

• Can the patent applicant issue a cease and desist before the patent is granted?

Or in general - at what point in time is a patent enforceable under the US law?

Answer 1

As a patent agent not a patent attorney, in real life I can't answer this type of question for my clients. I can tell you that the rights of a patent owner do not start until a patent is issued. The plain words of 35 USC 271 indicate that. Also you might look at the FAQs of a law firm here. (I have no relation to them) However there is a complicated thing called "provisional rights" that has absolutely nothing to do with provisional patent applications. Under provisional rights (35 USC sec 154(d) a patent owner, AFTER the patent is granted, can go after an infringer and in that action seek royalties from the date of the publication of the application. But there needed to be some notice and the claims need to be about the same as those on the finally issued patent.

Check with a patent attorney.