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Provisional Rights in Patent Applications



By Melinda L. Patterson of Howrey LLP

In 1999, as part of the "American Inventor Protection Act of 1999," Section 154(d) was added to the Patent Statute. Among other things, this act provided for publication of patent applications in the United States within 18 months of the filing date. The act also added a provision called "Provisional Rights," which allows a patentee to recover damages for certain activities occurring between the time a patent application is published and the time when it issues as a patent. That statute provides in relevant part:

(d) PROVISIONAL RIGHTS.-

(1) IN GENERAL.- In addition to other rights provided by this section, a patent shall include the right to obtain a reasonable royalty from any person who, during the period beginning on the date of publication of the application for such patent under section 122(b), or in the case of an international application filed under the treaty defined in section 351(a) designating the United States under Article 21(2)(a) of such treaty, the date of publication of the application, and ending on the date the patent is issued-

(A) (i) makes, uses, offers for sale, or sells in the United States the invention as claimed in the published patent application or imports such an invention into the United States; or

(ii) if the invention as claimed in the published patent application is a process, uses, offers for sale, or sells in the United States or imports into th...

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