If you use a technology design that has a non-expired patent application, once that application has been approved, assuming it will, then will the product be considered a patent infringement? Are there any issues to address now that the patent has been approved? What to do and what to fix?

1 Answer 1


What you are asking about is called provisional rights. Not be confused with the completely unrelated "provisional patent application".

If a person infringes the invention claimed in a published patent application, and that application is later granted, the patent owner is entitled to a "reasonable royalty" from the infringer (35 USC § 154(d)(1)), if:

  • the infringer had actual notice of the publication (35 USC § 154(d)(1)(B)); and

  • the invention claimed in the patent is substantially identical to the patent claimed in the published patent application (35 USC § 154(d)(2)).

What to do now that the patent has been issued?

Well first, stop infringing the patent. Then get yourself a lawyer to assess your liability for infringing the provisional rights.

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