You have almost certainly seen the phrase “patent pending” on various products or inventions. Inventors love to say patent pending, and companies love to brand their products as patent pending. But what does it actually mean?
Patent Pending Basics
“Patent pending” is a legal term that indicates an inventor or corporate applicant has filed a patent application for their invention with a patent office but is still awaiting a final decision. This can take from one day to three, four, or more years.
The term is usually used as a warning to others that the invention is in the process of being reviewed and evaluated for potential patent protection. It essentially signals that the inventor is pursuing legal protection for their creation.
During the pendency of the patent application, the term only provides a sense of exclusivity and discourages others from copying or stealing the invention. However, while the primary purpose of using “patent pending” is to inform the public and potential competitors that the inventor has staked a claim to the invention, the phrase does not actually have any legal teeth on its own. I have never been able to find any patent law rule or statutory provision that governs the “patent pending” label.
There is nevertheless some provisional protection available for some applications while they are pending. But this protection exists because of statutory law, not because of the use of the “patent pending” label. And, it there are specific requirements for notice and publication of those applications.
When Can You Use Patent Pending?
Obtaining a patent is a complex and time-consuming process. It typically involves several steps, including conducting a prior art search, drafting a patent application, and filing it with the US Patent and Trademark Office. Once the application is submitted, it undergoes a thorough examination to determine if the invention meets patentability criteria such as eligibility, utility, novelty, and non-obviousness.
During examination or prosecution of the patent application, the Office reviews the application, conducts a search for existing similar inventions, and evaluates the invention’s uniqueness and inventive step. This process can take several years, depending on the backlog of applications and the complexity of the invention. During all this time, you can use the “patent pending” label.
I file patent applications electronically. The Patent Office generates an acknowledgement filing receipt that I then send on to the client with a reporting letter. That filing receipt assigns an application number and a filing date. In almost all cases, that filing date establishes the date on which your invention is “patent pending.” So, essentially, as soon as your patent attorney files a patent application, you will be able to use patent pending.
All patent applications confer the ability to use the patent pending label. Whether you file a provisional application, a non-provisional utility application, or a design application, each of these is a patent application, and so each allows the use of patent pending.
But be careful, because in some countries, improperly making a product with “patent pending” can lead to legal consequences, including injunctions or monetary damages. In the US, false marking carries a penalty that can ramp up very quickly if you have large sales volumes.
How Do You Identify Something as Patent Pending
There is no law that defines how something must be marked as patent pending. Many companies will mark the actual product. Others will mark the packaging for the product. Others will use “virtual marking,” which is when a website lists the patent applications and the products which the applications cover.
Most frequently, the label will read as one of these:
- Patent Pending
- Pat. Pend.
- Patent(s) Applied For
- Patent Applied for in the U.S. and Internationally
Generally, most patent pending labels do not use the patent application number or a filing date. There are various reasons for this, so consult with your local patent attorney before using a patent pending label that uses any identifying information like an application number or a date.
Steps For Patent Pending Status
To get to patent pending status, you have to file a patent application. Contact a competent patent attorney, discuss the invention with them, and then have them file a patent application. Once you receive confirmation from the attorney that the application has been filed with the Patent Office, you can start using the label. When I report a filing, I specifically let my clients know whether they can use the “patent pending” label.
Getting to “patent pending” is much easier than actually issuing a patent. Almost anyone can file a patent application. However, not everyone should! You really only get one shot at a patent application, and there are a lot of mistakes to be made and problems that can arise over the one to three years that it typically takes to grant a patent. If you file an application that has problems, you may never be able to obtain a patent. Please contact Phoenix patent attorney Tom Galvani if you have any questions about using the patent pending label or filing a patent application.