The Limited Impact Of Provisional Patent Rights

Law360, New York (February 11, 2016, 10:41 AM EST) -- Matthew J. Dowd

Justin Crotty In 1999, with the passage of the American Inventor’s Protection Act, 35 U.S.C. § 154(d) was added to provide a patent applicant with the right to collect a reasonable royalty based on infringement occurring during the publication of a patent application. This expansion of recoverable damages, referred to at times as an “extraordinary remedy,” was seen as a compromise, given AIPA’s requirement that almost all U.S. patent applications would be published within 18 months from the filing date.

In the more than 15 years since its introduction, however, provisional rights have rarely been asserted or granted....

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