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Case Study: #1, 2017


II. Introduction. Receiving full patent rights is desirable before introducing a new product to the marketplace. If the market venue is online, a patent for the new product is all-important as a merchant can expect copycat products shortly after introducing the new product.  A pending patent application allows the seller the right to announce the new product has ‘patent pending’. ‘patent pending’, though, is insufficient to protect the product as the merchant cannot avail herself of online legal protections, or pre-litigation actions.
An issued patent (full patent right) is desirable because the merchant has access to more tools with which to answer copycats.

III. Background. An online merchant desired to introduce a new product to the home products industry. A search for similar products showed the field to be particularly crowded. However, the merchant asserted the new product would contain improvements over the existing products. The online merchant contacted DeWitty and Associates to begin the steps to obtain patent protection.

IV. Problem. The number of competitors in the industry foreshadowed difficulty in the merchant being able to acquire sufficient market share for the new product. If the new product with its new improvements were introduced in the marketplace without legal protection, there would be a strong likelihood that competitors would copy the improvements. Lack of legal protection would mean the merchant would have few tools to stop copycats.

V. Proposed Solution. After analyzing the new product with its improvements, currently existing products, and the goals of the merchant, we recommended a patent search, followed by a new patent application filed using the Track One – Prioritized Examination program of the U.S. Patent Office. The patent search, performed on the USPTO database and search engine EAST, gave us the ability to prepare claims to sufficiently overcome previous patents. Through the Track One program, we expected to have a response on the patentabilty of the new product within 12 months.

VI. Outcome. After being accepted into the Track One – Prioritized Examination, we were able to receive an allowed patent in less than 3 months of filing. Whereas the Track One program reports final deposition in around 6.5 months, we attribute the speedy decision to the detailed patent search performed on the product. Our search led us to craft exact claims that the examiner could allow.

Securing early patent protection gives the merchant a strong barrier of protection around the new product, while also being able to warn potential copycats of the existing patent protection. In the event copycat sellers do arise, the seller has more tools at its disposal to combat the copycats.

VII. Applicability to future Cases. This case has shown the importance of knowing prior art, through a search, before submitting a patent application. The Track One Examination program showed benefit to merchants by awarding full patent protection by the time the new product was offered online.