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I am relatively new to the world of patenting and IPs, and I had a quick question for the following hypothetical scenario. Say that I submitted a patent only to find out later that someone else has filed a claim of infringement against me. Let's say that I haven't made any money off of the patent, nor have I developed, mass-manufactured, or sold the described product. However, tragically, the original holder does have a valid claim, and it does clearly appear that I have accidentally committed patent infringement.

What's the worst that could happen, and what would most likely happen? There aren't really any damages because I haven't made a profit off the patented invention, right? Could I be sued or forced to pay litigation costs? Or would I just have to arrange for my patent to get revoked? I guess one of my main concerns is: Would I have to pay some amount of money?

Would someone even bother to file a claim of infringement against me if I haven't even brought a competing product to market?

Thank you in advance! I apologize if the question is confusing or if I used improper patent litigation lingo.

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A patent is infringed by making, using, selling, offering to sell, or importing an infringing product.

By writing a patent you do none of that. Therefore your scenario is impossible.

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  • 100% correct. The OP would not have infringed at all.
    – George White ♦
    Jun 30, 2021 at 5:37
  • What you say is true, but anyone can sue anyone else. There doesn't need to be merit in the suit.
    – Eric S ♦
    Jul 1, 2021 at 16:39
  • @EricS yes, but that's usually not the answer people are looking for. I can sue you for that one time you hit me on the nose even though we've never met, but you'd just laugh me out of court ;)
    – user18033
    Jul 1, 2021 at 19:54
  • Unfortunately, nuisance suits are a thing here in the US and there are court costs incurred which makes some settle even if they are in the right.
    – Eric S ♦
    Jul 1, 2021 at 21:00
  • @erics well, but then it doesn't matter if you claim patent infringement or anything. But afaik frivolous lawsuits can actually be punished by the court. I don't think the "you can be sued for anything"-disclaimer really helps anyone.
    – user18033
    Jul 2, 2021 at 4:44
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What DonQuiKong states is absolutely true. Nothing about filing or pursuing a patent can cause you to infringe an existing patent. A couple of notes, however. You seem to indicate that your patent application gets granted. Presumably if the other party has an issued patent, your application wouldn't get granted unless it patents something new over the existing patent.

You can get sued for making a patented device for your own use even though you haven't sold the device. While you haven't sold anything, making the device for yourself could be considered a lost sale for the other party.

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