This answer has two components. First, the question is whether you are able to take legal action against this company. Then, some rough guidelines on how to successful prosecute a suit against them if you are unable to stop the infringers from doing just that.
The United States is a first-to-file patent jurisdiction. This means that the first party who invents something and successfully files a patent for the invention with the United States Patent and Trademark Office holds the invention’s patent rights. If you did file a patent application, you are in prime position to act against your competitor. If you did not file a patent application and your competitor has not, I would strongly urge you to stop reading this post and file a patent application as soon as possible. Finally, if you did not file a patent application but your competitor did, I would advise you to cut your losses because continued use of the invention could leave you vulnerable to an infringement lawsuit.
Your application must (1) disclose the invention in detail and (2) make claims on the patent. A USPTO patent examiner will review whether your invention is novel and non-obvious and either (1) reject the application or (2) approve it.
If you have already gone through this process, great! In this situation, I would advise you to send a cease and desist letter to your competitors. If they do not comply, you could bring a patent enforcement action against them for:
· Making, using, offering to sell, or selling within the US, or importing into the US, any invention covered by the patent claims (literally or under the doctrine of equivalents) or
· Importing into the US a product made by a process patented in the US.
If this response did not address all your questions, feel free to message me with anything else that may be on your mind. Thanks!
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