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My start up is getting ready to launch a retail product, for which we have filed (and expect to be granted) a patent application. The typical time for a patent to be reviewed is about 2-3 years, and we may face infringement and imitation by competitors in the interim.

We want to deter infringement and maximize the value of the company, and have been advised that Patent Pending status is desirable because it increases the uncertainty (and hence perceived legal risk) for potential imitators (in our case, large incumbent corporations).

In your experience, is it better to maintain patent pending status (with some uncertainty as to the final granted claims), or to expedite the review (to remove any uncertainty w.r.t. the value of the patent)?

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Having recently gone through this, a number of people are correct above. There is no benefit to advancing review - patent pending status gives you the same protection, so don't waste your money trying to accelerate it. That said, we spent $10,000 and 6 years, and after the second rejection, and talking to a number of investors, decided to cancel the application. The value of the patent itself is only useful if you have sufficient patents in a given area to have a realistic legal benefit, and that only if you decide to sue someone else.

If you have no intention of suing anyone, do yourself a favor - keep the patent pending status (the marketing aspect of it is still worthwhile, particularly if you've already laid out that money), sell it as such, and just let it work its way through the system.

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Thanks Mark. So you're saying that unless there's a need to sue, it's better to leave the patent alone and let the process run its course. In the case yo mentioned where the patent didn't pan out, had you already gone to market with the relevant products? How did this rejection affect your market position / value for your investors? – Michael Oct 13 '09 at 15:27
"Patent Pending" status provides you with NO legal protection until the day the patent is issued, after which you are then able to run out and sue people. I have a dozen or more patents pending and anyone who wanted to could go out and infringe on them all they want. Then pray they don't issue because they are all assigned to my former employer who is HUGE. Patents fall into two categories -- evolutionary (improvement on existing ideas) and revolutionary (entirely new ideas / concepts). If you are a small business, don't mess with the former. Waste of money ... – Julie in Austin Sep 16 '12 at 1:24
up vote 3 down vote

In my experience the typical time for a patent is more like 5-6 years. They get further and further behind.

Here's the thing with patents -- they don't matter until someone gets sued. And if there's a lawsuit, you'll be spending tons of money and time on that and the time/money you would have spent on the patent is a drop in the bucket.

So I advise to not worry about expediting. Get it, sure. Brag, yes. But it won't change anything important.

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You're wasting your time on software patents. Focus on something important.

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Remember, if you ask for an expedited review, then you might 'remove any uncertainty w.r.t. the value of the patent' by having it rejected.

Focus on the value of your product/service itself first.

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Hi Mark, thanks. You're confirming my suspicion, looking at it from this point of view there isn't really any upside to accelerating the process. – Michael Oct 13 '09 at 15:23
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In my experience, it is better to maintain patent pending status (with some uncertainty to the patent granting process) . The main thing with infringement is reputational risk for copycats. If the Chinese or the Indians want to do the 'copying' it is hard to stop them anyways. This will atleast prevent the big guys in your home country from copying your retail product ditto.

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Indeed, it's only worth having if you're willing to enforce it. I'm curious though how these big guys view the deterrent effect of a patent-pending label vs. actual granted patent/patents. – Michael Oct 13 '09 at 15:25

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