When does patent protection commence?

The right to sue an infringer does not commence until a patent has been granted (which may be several years after it is filed).  However, publication of the application (about 18 months after it is filed) confers ‘provisional’ protection in that, if you subsequently sue a competitor you can, in some cases, seek damages back to the date of this publication.  This publication can also be brought forward if necessary.

It should also not be forgotten that, in many cases, the main form of protection obtained is the deterrent value or the strengthening of you negotiating position – this can arise as soon as you mark your product ‘patent pending’ or the patent application is published.

(Provided by Steve Unwin, a colleague at Fry Heath Spence)
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