I did not read the story, but:

In general, and asssuming you have a properly drafted patent application with solid claims, infringement might be a very good thing, and in that case you may want the infringer to be very successful at marketing your invention.

1) They opened the market. They broke the ice.

2) You may stop them from marketing it or importing it, if they are manufacturing overseas, once a good patent with good claims issues.

3) Any profits your idea may have generated are yours, and you’ll be entitled to retroactive compensation ONCE your patent issues. This is assuming again, you’ve got a good patent, with good claims which duly defines the successful ‘copy-cat’ as such. In that case they are indeed infringing.

4) If your patent does not issue and you did not get the strong claims you were hoping for, well you did not lose anything anyway, beacuse they could have legally ‘copy-cat’ you when the application was abandoned, or when a weak patent issued.

Again, I did not read the article on ID. These comments are based on the notion that

“an inventors idea was stolen because of her patent application was published before the patent was granted”

as posted above.

did it say what her patent was for?

The patent was for a pet product.

most patents are published before they are granted are they not

Technically, before they are granted, they are applications only, Brendan.

In the US, it is an optional thing. I don’t remember what the standard, normal procedure is. I mean, I don’t know if they are all published UNLESS you request it to remain unpublished;; OR if they are all unpublished UNLESS you specifically request it to be published.

One or the other, but applicant does have the option.

If you want to check out the story, it’s in the September issue of Inventors Digest.

Joaco,
My understanding is that you can’t go after retroactive earnings prior to the patent issuing. You can only go after earnings from after it has issued. Of course, one can still have leverage prior to the issue of the patent if the company has a lot invested in the product and doesn’t want to have to deal with you after the issue date when they might have to accept tougher terms or a law suit.
Also, you can file a request for non-publication when you file the patent application.
I’m not a patent agent or attorney, so don’t take my word for it — this is just my understanding.

Joaco’s correct! In 2001, the PTO began publishing patent applications that had been filed eighteen months prior. Prior to that change, essentially all U.S. applications had been kept secret throughout prosecution…Under the new rule an application will publish after eighteen months unless the applicant explicitly requests non-publication and promises that it does not intend to file any corresponding foreign applications.

http://www.uspto.gov/web/offices/com/speeches/0...

I don’t know for sure, James. You might be right. Maybe that was just wishful thinking. Maybe if you notify them that you have a patent pending, on the invention they’re commercializing it could give you retroactive rights if and when patent is granted. Maybe?

I am no attorney or agent either. I just like learning about this stuff.

Patent Apps. should be kept private!! What would be the since in it otherwise? That is the same as telling everyone your idea. I think it would keep that kinda situation from happening alltogether. There are a lot of people who don’t mind making a buck off of someone else’s idea and they must know where to get them, or their looking.

Just to clarify one thing:

You cannot file a lawsuit until a patent is issued. But, as long as your patent issues with claims that are substantially similar to when it was filed – you can sue for damages dating back to publication. You do have to notify the infringing party.

As noted, you can request non-publication, so that your patent application is not published. This option is no good however if you are also filing for international patent protection.

Generally, there are only few situations where it really makes good sense to request non-publication, it makes you wait longer for protection and that protection (i.e. a patent) is just one part of a larger puzzle, anyway. Aside from the fact that speed to market is often important and you given that you might only be able to keep an idea secret for so long – Joaco, above, notes that an infringer or would-be infringer can help set up a market for a product or product category – they do all the hardest work for you and then as long as you have a solid patent application to begin with, you can actually find yourself with the ability to profit from their hard work and investment. They will need a license to your patent and/or you will need their customers and/or you can collect damages.

And of course, there are also situations where, due to the fast changing / short lifecycle nature of a product or industry, patents just don’t make sense, period. I haven’t read the referenced Inventors Digest article, but I do know that a lot of sad inventors stories – where they don’t root at least partially from egos or victim mentalities or what not – root from misconceptions regarding the worth of a patent or patent application. Some are worth a ton, others not nearly so much (if anything at all). And yeah there are a lot of legit stories as well, but if it wasn’t so hard it wouldn’t be so rewarding…

“And yeah there are a lot of legit stories as well, but if it wasn’t so hard it wouldn’t be so rewarding…”

There was a point in time when I would have agreed with that.

But after you’ve failed as many times as i have, you just don’t want to see anyone else make the same mistakes, and waste so much time, life, energy, and money.

Inventors don’t need any more hardships than they already have.

From the movie “K2” (true story) of first Americans to climb the mountain K2:
Harold “I achieved everything I ever wanted… But I gave up everything I had to get it… You call that winning?”

I’m not trying to discourage anyone, but there are 2 things that inventors should fight:

1. Anyone who downplays your contribution to society in any way. Inventors are the most disrespected, yet most important players in society.

2. We need to fight for more pay, less hardships. There needs to be an inventors union. Wishful thinking maybe. But I’ll tell you this: The money is in the picks and shovels, not in the gold. There are people out there who wish to do you harm and take advantage of you.

I just read the article in the September issue of Inventors Digest.

As someone going through the patent process myself, I feel for the inventor. After researching her patent, as well as finding the company I believe is the alleged infringer, this can be seen as an excellent example of why it’s so important to hire a patent attorney – especially if you have little experience with the process.

The inventor had the idea of freezing dog poop (for the purpose of cleanup and removal) using a can of aerosol freeze spray, a product that has been available on the market for as long as I can remember. What the inventor appears to have patented is an 30" long, tube-like housing that holds a can of aerosol freeze spray that would need to be custom made to fit. Because the aerosol can is sprayed upside-down, and the button for releasing the spray is on the opposite-end of the canister, it sounds as though a working prototype was never produced.

Even if a working version of the product were to have been manufactured and sold in stores, would you pay the cost of the housing plus expensive, custom-sized refilll cartridges when you could simply buy a $4.00 can of freeze spray? Probably not. This is essentially what the alleged copycat product is, a run-of-the-mill can of freeze spray with a label that reflects the company’s branding.

Susan, I agree with your conclusion, plus you don’t have to reinvent the wheel. I have not read the story yet, but based on the info here I would say this. You can just use the same spray can used for spraying spot remover foam on your carpet and fill it with the freeze spray. A triggering device is already on the market. Have you seen he extender pole the road crews, power companies use to spray painted lines on the road or to mark where pipes are underground?
My next question is one I pose all the time in these situations. Even if legally the Inventor is being infringed upon, do they have enough financial backiing to pay the cost of a lawsuit? Since it sounds like they have not put their own version of this product on the market are they willing to spend a lot of cash to go after the infringer not knowing if they will the case? The product idea sounds interesting, but as a dog owner I would not buy it because cleaning up the poop is not that big of a deal for me. I think it will be a small niche product. If it is the Inventor end up spending more in the lawsuit than they will ver see back in profits.

http://www.rogerbrown.net

I also thought it was like reinventing the wheel, Roger.

If the inventor had consulted with some professionals, I believe they would have advised her not to persue a patent for an unnecessary product. If she had invested her money in branding and having a product label designed and printed, she could have purchased cans of freeze spray wholesale and been first to market. I’m sure this road would have been far less expensive.

If anyone would like to see the patent, here’s the link: http://www.google.com/patents?id=TgEUAAAAEBAJ&a...

This a sad situation on many levels. Looking at the patent you see a product that really only needed three parts to be claimed to be viable, but claimed four due to someone’s inexperience. Once the patent was published, It was easy for anyone to come along and make the product with the same three parts and not infringe.

Situations like these hopefully serve as wake up call to the rest of us who get PPAs and patents that our products need to be striped down to the absolute simplest design with the fewest number of parts and yet still meet the qualifications for a patent. You can always add additional features and materials to make the product easier to use, longer lasting, more convenient and so on that you can add to the patent, but these will be secondary. Also, thinking the patent attorney or patent agent will do all of the simplification work for you is wrong. They’re going to help, but they won’t know the product like you will. Be sure to stay involved and consult with other experts like mechanical engineers to help simplify your idea for a really strong patent.

Great point Dond. Just like Inventors Patent attorneys have their strong areas and weak areas. Ask what type of patents they do the most and are they familar with your market. Also, don’t be afraid to point out any issues with the patent you see. Just because they write patents for a living and you don’t does not mean they can’t miss something. You are paying them for a service. Make sure you get the best service you can because if you don’t ask questions you will be stuck with what you get and that mistake could cost you everything. Don’t assume they know everything and think you are being a pest asking questions.

I have licensed products in the toy,tool, kitchen, eyewear, and nuclear industries. I am expanding into the exerecise industry. If you came to me with a fashion product it would be a new learning curve for me because ever field has its own set of quirks. Yes, there are certain rules that apply across the board, like being professional in your presentation, but you can’t take for granted what works in one industry works in another. This is where I always tell people the research comes in to play. You need to know your market before you jump in head first.

http://www.rogerbrown.net

Where can I buy a can of freeze spray? I DON’T like cleaning up dog poop and would love to have something that would help with clean up and removal. Using a long handled shovel is still too close for me. I will try a can of that freeze spray. :) I am going to go read that article.

Tracy,

I was also intrigued by the freeze spray product. But I did some research (sorry, didn’t save it). The inventor was fielding complaints from disappointed customers. He said that for the product to work as directed, you had to spray the top of the turd (sorry!), then turn it over and spray the other side. And then pick it up.

And only the surface would be frozen. The middle would still be squishy. Still want it?

I’m waiting for someone to invent a cat & dog food that is so thoroughly digested that there is no waste. No need for a large intestine. (;^)

Linda Linda,

It just came to me. I have two children and we watch a lot of Disney movies. Monsters Inc. is a cute movie and the mosters look at humans as being toxic, even their clothing. They put this dome over a child’s sock and it disintegrated. Maybe we can make a dome and toss in a little something that will destroy it into an odorless poof of smoke. ;)

Thanks for the response.

I am not surprised!

When will Obama make a stimulus program for inventors? This would employ patent agents, researchers and attorneys and make America more competitive since it is rare for someone to be an inventor and also be rich enough to throw a lot of money at every idea they have. Then the stimulus could employ Americans to make the products. (You know, if you get the grant, the product must be made in the USA)
And the stimulus/grant would include international patents so that America’s economy would become stronger. This would seem to be much more useful for our economy than bailing out Goldman Sachs so that they can give million dollar bonuses to themselves.
I have a lot of ideas, I envision a small company employing 15 people making my stuff and shipping them out internationally, but with my resources it will probably not happen.

Hi Fuggy,

If you’re envisioning opening a small company, the government already has a significant assistance program called the Small Business Administration (sba.gov). They have grants, loans and other resources for people wanting to open up businesses.