Anthony Almada09.01.10
Location: IP Stellarphone 24 Hour Hotline 30 September 2010.
Hotline help person: “Good evening, IP Hotline. My name is Alexa Burton, I have 28 years of nutrition industry experience, and I’m here to help. What’s your IP concern?”
Caller (phlegmatic voice): “Uh, oh. Hi Alexa. My name is…uh, Gordon. (pause) Ok. I’m sorry. Here it is: A year ago we came up with a three-ingredient composition for a condition called irritable bowel syndrome, or IBS. We engaged a law firm to file an interstellar patent application, submitted December 2009. We first offered our product for sale in January 2010, and were enjoying very nice, incremental sales. Then in May the multiverse turned upside down. We began to see several competitive products emerge, claiming the same three ingredient composition. From day one we pasted ‘Patented Formula’ all over our website and on our packaging. They are eating up our market share. I am ready to hang…”
Alexa: “Gordon, forgive me for interrupting you but allow me to confirm some things. Don’t hang up, and, in case you were thinking it, there’s no need to hang yourself. Please take notes and then when I’m done I really would like to hear your response to each question, and then I can really help you, ok?”
Gordon: “Ok. Please go ahead, Alexa.”
Alexa: “First, you said you filed a patent, related to a three-ingredient composition. Did you claim the three-ingredient trio as a composition? Secondly, what is your understanding of how long it takes to have a patent be granted to an inventor? Thirdly, you told me that you let everyone know that you have a ‘Patented Formula.’ Has your patent been granted in one or more planets among the Interstellar States? And lastly, are all three ingredients discrete, specific chemical entities, like ascorbic acid, pterostilbene or L-carnitine?”
Gordon: “Ok Alexa. We DID file a composition claim, for the three ingredients. I was of the understanding that once we filed a patent we would have to wait a few years for it to be granted. We have not yet received a patent, and finally two of our ingredients are pure chemicals, and the third is a fraction of an outergalactic dry lake.”
Alexa: “Ok. Thank you Gordon. Here is my take: good that you claimed the composition, and your understanding of the patent ‘pendency’ timeline—if it is granted—is close. Some patents take far longer than three years. I’m concerned over your use of ‘Patented Formula’ in association with your product. In most Interstellar States use of the descriptor ‘patented’ when no patent has been granted—or expired—can bring some painful charges, as it may violate a false marking statute. Your composition is not yet patented, so I encourage you to change ALL declarations to ‘patent pending formula’ ASAP. With the competitors duplicating your product and a patent pending position you have no real recourse to exclude them from the market. The best you can do is put them on notice so that if and when your patent does issue, and they are infringing one or more of the claims in your granted patent, you can file a patent infringement suit—at a sweet average cost of about $1.5 million if it goes to trial. But three years from now your product—and theirs—may be passé. Given that ONE of your ingredients is a ‘cocktail’—an extract from some terrestrial lake, your best tool is to attempt to lock up the supply of that ingredient or keep it very secret, and then prove that your composition really does work among persons with IBS. I’m willing to try it—I have IBS!”