Understanding Patent and Commercial Warranty Liability Stemming From Pending Patent Applications

18 Wake Forest J. Bus. & Intell. Prop. L. 443

Businesses often wonder about the risks associated with pending
patent applications; that is, when a patent application has been filed by
another entity but an issued patent has not yet been granted. These
sorts of analyses always involve a certain amount of speculation,
because a pending patent application might become a granted patent, or
might not. Waiting until a patent is granted or the patent application is
abandoned is often unappealing, from a business perspective, because
the art of business is about strategic positioning and a “wait and see”
approach may mean lost opportunities. Moreover, patent applicants
may mark their products as being “patent pending,” which may prompt
inquiries to competing sellers from potential customers, or various
threats—overt or veiled—from such patent applicants about their not-
yet-patented technology. What follows is an overview of potential
liability stemming from others’ pending patent applications, meant as a
guide to addressing these sorts of situations.