Last week, I blogged about how the US Patent and Trademark Office publishes pending patent applications under certain conditions. I would like now to build on that topic and discuss one potentially significant advantage for a patent applicant from having her application published.

Title 35, Section 154(d) of the U.S. Code provides that a patent owner is entitled to a reasonable royalty from anybody who made, sold, used, or otherwise practiced the invention (as claimed in the patent application) while the application was pending if two requirements are satisfied:

  1. The accused infringer was provided actual notice of the published patent application, and
  2. the invention as claimed in the patent is substantially identical to the invention as claimed in the published patent application.

This statute provides an anomalous result--one can receive compensation for patent "infringement" that occured before any patent was granted. This statute can be very beneficial for a patent applicant, especially if the applicant's claimed invention is already being used by another entity. In such cases, the applicant doesn't need to worry as much about rushing through the patent examination process because he could be entitled to royalties no matter how long it takes for his patent to issue (as long as the two above requirements are met).

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