First published in Western Sydney Business Access.

While being innovative in business is the way forward, being copied by competitors is damaging and costly. If you patent your product or invention, you have a powerful tool for developing your business or securing investment, but you do need to be vigilant.

If a competitor copies your invention (with slight variations to avoid infringement) how can you stay on top? Enter the pending patent application.

Among various patent strategies employed by some of the top innovators, is maintaining a pending patent application. This approach can help to close potential loopholes your competitors may attempt to exploit in order to avoid your hard-earned patent.

A pending patent application can be used to secure further patents that capture the competitor's work-around.

A powerful illustration of the success of this strategy involves the recent case of Australian Mud, a company that provides drilling technology to mining and drilling industries.

Australian Mud was awarded an innovation patent and maintained a pending patent application for a core drilling device. A competitor developed a competing work-around system that included a component difference, but did not alter the key function of the invention.

While the Federal Court initially concluded that the competitor's work-around avoided the innovation patent, having a pending patent application allowed Australian Mud to have a second bite at the cherry by filing two further innovation patents, which retained the filing date of their pending patent application.

The Federal Court subsequently concluded that Australian Mud’s further innovation patents were infringed by the competitor's.

Key takeaway

There are various ways a patent can be put to work, to both protect and grow your business. Retaining a pending patent application allows an innovator the flexibility to lodge modified patents in the future that are tailored to catch a competitor’s activities. Make sure you explore options such as this with an experienced patent attorney to ensure that you get maximum value from your IP assets.