Filed provisional patent 8 months ago - competitor just launched identical product

I filed a provisional patent in September 2024 for a novel mechanism in a consumer electronics device. We've been developing the product and just started taking pre-orders last month.

Now a competitor (much bigger company) just announced a product that uses the exact same mechanism. I mean EXACT - same design, same approach, everything.

My provisional patent is still active. Can I do anything about this? I haven't filed the full utility patent yet - was planning to do that in July (before the 12-month deadline).

Do I have any legal recourse or am I screwed because I only have a provisional?

Provisional patents don't give you enforcement rights. They just establish a priority date. You can't sue anyone until you have an issued utility patent.

File your utility application ASAP and then you'll be able to pursue damages once it's granted, backdated to your provisional filing date.

PatentTechie is correct but let me add some important context.

A provisional patent application gives you ZERO enforcement rights. You cannot sue for infringement, send cease and desist letters, or take any legal action based solely on a provisional. It's purely a placeholder that establishes your filing date.

However, here's what you should do immediately:

1. File your non-provisional (utility) application NOW - don't wait until July. This starts the examination clock.
2. Document everything about their product - purchase one if possible, screenshot their marketing materials, save their website with archive.org
3. Consider filing for expedited examination to speed up the patent grant process

Once your patent is granted, you CAN sue for damages dating back to when your application was published (typically 18 months after filing, or when the patent grants, whichever is earlier). But you need an actual granted patent to enforce.

So basically I can't do anything right now? That's brutal. They're going to dominate the market before I even have a granted patent.

How long does it take to get a utility patent granted? I've heard it can take years.

Average time to grant is 18-24 months, but you have options to accelerate:

• Track One prioritized examination: $1,000-2,000 extra fee, can get you to first office action in 2-3 months instead of 12-18 months. Final grant in 6-12 months if you respond quickly.
• Patent Prosecution Highway (PPH): If you file internationally and get allowed claims in another country, you can accelerate the US examination.

Also, you CAN mark your product as "Patent Pending" which provides some psychological deterrent, even though it has no legal teeth until the patent grants.

Real talk though: patents are expensive to litigate. If this competitor is a large company, even with a granted patent, litigation could cost you $500k-$2M+. You might want to think about licensing or other business strategies rather than purely legal ones.

Wait, how would they even know about my mechanism? I haven't launched yet, just started pre-orders. Our provisional patent isn't public, right?

Could they have filed their own patent on the same thing?

Provisional applications are NOT published. They remain confidential unless you convert them to a non-provisional (which gets published at 18 months).

Most likely scenarios:

1. They independently developed the same idea (more common than you'd think)
2. Someone on your team leaked information
3. They saw your product demos, marketing materials, or prototype
4. They filed their own patent application before or around the same time as you

You should search the USPTO database to see if they've filed anything. If they filed AFTER your September 2024 provisional date, your provisional gives you priority. If they filed BEFORE, you might have a problem.

This is why I always tell clients: file provisionals as early as possible, but don't delay the non-provisional. The longer you wait, the more risk someone else files first.

I went through something similar. Filed provisional, competitor launched a similar product 6 months later. Turns out they'd been developing it for 2 years - completely independent development.

Unless you have evidence they copied you specifically (like a former employee or leaked documents), it's probably just bad timing. Multiple people can have the same idea.

Focus on your business execution rather than the legal fight. Even if you get a patent, enforcing it against a big company is a nightmare.

Update: I searched USPTO and found they filed a provisional patent in August 2024 - one month before mine. They filed their non-provisional in February 2025.

So they have priority. I'm basically screwed, aren't I?

Not necessarily. A few things to consider:

1. Priority date only matters if their claims actually cover your invention. You should review their application to see what they're claiming. There might be differences.
2. Even if they have priority, you can still file your application and potentially get claims allowed on aspects they didn't cover.
3. You might be able to design around their claims if they're narrow.

Have a patent attorney review both applications side by side. This is exactly the kind of situation where professional help is worth it.

And remember: patents aren't the only form of IP protection. You might have trade dress, trademark, or copyright protections for other aspects of your product. Focus on differentiation and execution.