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A Patent Holder’s Ace in the Hole—Live, Pending Applications

Having a live, pending application for your patent asset is the absolutely, single most effective thing you can do to secure a campaign—even moreso when the specification tightly tracks current-day and future-day markets (e.g., patent assets covering standards). 

With a live application on file at the Patent and Trademark Office (“PTO”), you have an opportunity to look back in time.  Namely, you can claim property rights looking at present and trending markets, and draft claims that directly and cleanly read on such markets.

There is no way to quantify the value-add to a campaign with a live application.  It can mean the difference between putting seven figures in your pocket, earned over a 3 to 5 year timespan, or finding yourself looking for other opportunities.

In addition the infringement leverage, a pending application provides leverage over prior-art attacks. As litigants submit prior art over the course of a campaign (which is inevitable), you have the opportunity to draft new claims that overcome the prior art, and yet still read on current and trending markets.

Moreover, having a live, pending application is a tool you can wield to thwart any counter measure thrown by a defendant—including the present-day tested Inter Partes Review.

If you acquire a portfolio with a pending application, keep it alive and thoroughly analyze ways to draft claims that read on current and trending markets, and that weave through the prior art. 

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