The following is excerpted from an August 30, 2010 post by Vincent LoTempio at his LoTempio Law Blog:
Recently a client asked me to sue a competitor for infringement on her patent application. I told her that even though you can mark articles with the terms "Patent Applied For" or "Patent Pending" these phrases have no legal effect, but only give information that an application for patent has been filed in the United States Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent.
However, damages for pre-patent grant infringement by another are now available. The American Inventors Protection Act, 35 U.S.C. § 154(d) gives the inventor provisional rights:
“patents issuing on published applications will include the right to obtain reasonable royalties from others who, with actual notice of the published application, made used, sold, offered to sell, or imported the invention as claimed in the published application before the patent was granted.”
Read the full post here.