Patent Update: Can a Patent Be Infringed Before It Issues?


How long does a U.S. utility patent remain in force? If asked this question, many might say 20 years. This is not correct, however. The term of a patent is the period of time extending from the issue date of the patent to 20 years from the date on which the patent was applied for. Considering the time it takes for the U.S. Patent and Trademark Office (USPTO) to assign a patent application to an examiner and for the usual back-and-forth between the examiner and the inventor’s attorney before a patent is granted, the term is typically two or more years short of 20 years. In some cases, the term is even shorter, for example, when the application is a newly filed version (e.g., a continuation) of an earlier application.

Another misconception is that patent infringement can only occur during the term of the patent. A patent owner must wait until the patent is issued before challenging infringers, but in some cases, the patent owner can receive monetary compensation for infringement that occurred before the patent’s issue date. And, this can even occur if the infringing activity ends before the issue date. A recent lawsuit between Rosebud LMS, Inc., and Adobe Systems, Inc., demonstrates what a patent owner must establish to seek this type of remedy.

The case involves Rosebud’s Patent No. 8,578,280, which covers...

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