Back in July, I had an idea for a new product. I set up a quick landing page, bought a domain and ran some ads to validate the idea. It went well. I moved to phase 2 and actually built out a site with some beta product, which launched in Late August. Encouraged by sales and feedback, I went ahead and procured my exact match domain from a broker and went live with my 'public launch' about 3 weeks ago from today.

Maybe 10 days ago I noticed a crowd funding campaign go up for my product from a random seller in another state. Oh, well. The product is slightly different and much much worse than the one I sell for many reasons I won't go into, mostly to do with manufacturing process. The goal the creator set was so high it would never get funded so I wasnt worried.

I should note that at this point I was reviewing logs and noticed a lot of direct traffic from a handful of devices that had IP's originating in the creators city, going back to the phase 1 validation landing page. Strange...

I should also note that during my launch I got a sale to an address in that area and went ahead and shipped it.

Anyway, fast forward to earlier this week - the creator cancels his original campaign with the high unachievable goal and relaunches a new one with a much much smaller goal citing differences in manufacturing and mentioning the exact material / stuff that I make mine out of. At this point, I'm figuring he received my package and reverse engineered my product and realized he didn't need as much dough to make it happen. Bummer, but what can i do.

Well, I just received a notice from his 'laywer' that claims he has filed a patent application for the product and to cease operating my business or risk being sued off of the face of the earth. I did search the USPTO website for pending applications in the creators name and found none. The lawyer also did not include the document / application ID, as I believe is customary when attempting to enforce such a thing. I am not even sure if he really filed it.

I have been told about 'prior art' clauses in the patent process for challenging validity of the patent and so on. I had originally contacted a lawyer friend in July and he told me the idea was far too generic to be patentable, but if I secured the exact match .com domain and registered a business called the same thing I could maybe file for a trademark and get some copyright protection (the creator is using my brand name to describe his product).

1 Answer 1

  1. You can't enforce a patent application. You can simply respond politely inviting him to bug off, or more usefully to let you know if a patent ever issues.

  2. You can't file a patent application after someone else has published the invention in the US. So your website would count as prior art, as would the products you shipped, any documentation you published, etc.

  3. Collect your papers now, while you still remember where everything is. Document, document, document.

  4. Consider filing a patent yourself. You have one year from your first disclosure to file a patent application.

  • One caveat: A patent application is eventually published; if it is published with claims substantially identical to the ones that eventually get issued, you can collect damages for use pre-issuance -- see subsection (d) here: law.cornell.edu/uscode/text/35/154 You shouldn't be able to find a newly filed patent for about 18 months after filing since it isn't published until then (with exceptions).
    – Gary S
    Commented Feb 5, 2018 at 1:43

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