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Assuming a company will work on and submit its patents, independently of whether its patents / patents pending are publicized or not (e.g. in its software and website), are there real benefits in publicizing your patents?

I mean, a competing company can't say it can break another's patents because it didn't know they existed, right? So, are there pros and cons on publicizing the patents? Is the investment of publicizing them worthwhile?

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2 Answers 2

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There are many nuances to this issue, and I won't be able to cover all of them. Note that a company can be liable for infringement even if it was unaware of the patents. Awareness of patents only contributes to showing willful infringement, which can have higher damages.

Some cases where you want to publicize your patents:

  1. You are looking to get investment or funding in a startup. Depending on your industry, such as biotech, many investors/VCs won't even consider funding you unless you have filed for patents [1][2].

  2. You want to "stake your territory" and put competitors (existing or potential) on notice. This may also help, say, if you sue for infringement and want to allege willful infringement.

On the other hand, you can do the opposite and keep your patents for publishing until they issue. Some cases where you may want to do this:

  1. You want to avoid tipping off your competitors of what you're working on, thus retaining a competitive advantage. For instance, you've pioneered a new field of technology and you want to mine all possible inventions before it becomes public. In other countries, companies intently watch their patent offices as a source of intelligence on their competitors' future plans.

  2. You are, e.g. in "stealth mode", and do not yet wish to disclose your work to the public.

  3. You want to maximize the value of your patent and hope that as many firms as possible will end up unintentionally infringing your patent instead of devising work-arounds. (These are often called "submarine" patents.) Note that in this case you are trading off the potential for willful infringement damages for (hopefully) a greater number of infringers.

References

  1. http://www.patentlyo.com/patent/2010/07/patenting-by-entrepreneurs-the-berkeley-patent-survey-part-i-of-iii-1.html

  2. http://www.law.northwestern.edu/searlecenter/papers/Sichelman_Graham_patenting.pdf

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Interesting sources. –  John Assymptoth Sep 27 '12 at 18:27

At least in the US, this is actually required (at least the patent number bit):

A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word “Patent” and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.

The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms “Patent Applied For” or “Patent Pending.” These phrases have no legal effect, but only give information that an application for patent has been filed in the USPTO. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.

(From the USPTO "General Information on Patents" pamphlet, emphasis mine).

It's also a deterrent to someone else cloning the invention and claiming ignorance: While you can definitely get the infringing product pulled (and sue for damages subject to what's above) it's a lot more work than if you never had to fight the clone-makers in the first place.

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(In the case of software the patent list is often buried on an about screen, in the manual, etc. -- There's no requirement that the marking be "conspicuous" as far as I can tell) –  voretaq7 Sep 27 '12 at 16:56
    
Didn't know you're actually obligated to have patent info in your products. Great answer! –  John Assymptoth Sep 27 '12 at 21:05
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@JohnAssymptoth You aren't "obligated" in the "If you don't do it your patent is invalid" sense, the only penalty I'm aware of is what's above: it's more of a pain in the butt to deal with infringers if you don't put the info on/in the product. –  voretaq7 Sep 28 '12 at 2:21
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This is called "patent marking". IANAL, but it doesn't seem to be a very strict obligation. In fact, it'll be even less likely since manufacturers started getting sued for neglecting to stop marking their products after the patents expired! (online.wsj.com/article/…) –  kinkfisher Sep 28 '12 at 2:44

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