patent pending still make product?

[Mec4040]

What is the name of your state? NY

My question is based on the term 'patent pending'.

If someone has a product, that you know in new, as well the label reads 'patent pending' and you decide to make the same product but change the name. You continue to sell this copy cat item, until the other item finally gets its 'patent', in which case, you stop production and never copy it again.

Can the person who had the 'pending' sue you for the year or so that you were selling the copy, or he cannot sue you for money unless you continue to sell?

Thanks for your time and looking forward to hearing from someone.

Lisa

 

[divgradcurl]

You can't sue someone for patent infringement until the patent actually issues. If there is no issued patent, there can be no infringement -- so anything that occurs prior to the issuance of the patent is, by definition, not infringing, and since there is no infringement, you can't be sued (well, you can be sued, of course, but they won't win...).

Now, that said, there is some caselaw out there that suggests that if a product is marked "patent pending" and is copied, once the patent actually DOES issue, the original copier would be considered "on notice" of infringement immediately, and could be liable for willful infringement from the day the patent issues. The caselaw is not entirely clear in this area, but there is certainly some risk if you decide to do this -- because even if you sell for 1 day after the patent issues, you could be sued for infringement, and if the courts find that the infringement is willful, the penalties could be pretty high...