Whether you are a patent applicant with a currently pending application or an established company with a portfolio of patented products available on the marketplace, you may encounter competitors with a product that appears to infringe your patent or your currently pending patent application. A potential first step to protect your intellectual property is to send a letter to the potential infringer. But what type of letter should you send? What risks do you face by sending a letter? What issues may arise with a letter for a pending patent application versus an issued patent? This article briefly describes broad issues to consider when taking the first steps to communicating with a potential infringing competitor.

The purpose of sending a letter to the potential infringer is generally to stop the infringement and/or protect pre-suit damages. The preferred way to protect pre-suit damages is through patent marking, including virtual patent marking. In the absence of patent marking, notice letters serve two purposes: (1) to protect pre-suit damages; and (2) to build a case of enhanced damages under willfulness.