What is patent pending?
Understanding Patent Pending Status
Patent pending is a legal designation that indicates an inventor has filed a patent application with the United States Patent and Trademark Office (USPTO) or another patent office, but the application hasn’t been approved yet. This status serves as a public notice that someone has claimed rights to an invention and is seeking patent protection.
When you see “Patent Pending” on a product, it means the inventor or company has taken the first official step to protect their invention. The pending patent application is being reviewed by patent examiners, a process that typically takes between one to three years, though it can sometimes take longer.
How Patent Pending Status Works
The patent pending status begins the moment you file either a provisional or non-provisional patent application with the USPTO. Here’s what happens during this period:
- Your invention receives a filing date and application number
- You can legally use the patent pending notice on your products
- The USPTO begins examining your application
- Your invention gains some level of protection against copycats
During the patent pending period, your invention isn’t fully protected like it would be with an issued patent. However, the provisional status still provides important benefits and serves as a warning to potential competitors.
Types of Patent Applications That Create Pending Status
Two main types of patent applications can establish patent pending status:
Provisional Patent Applications
A provisional patent application is a simpler, less expensive option that gives you 12 months to file a full non-provisional application. It establishes an early filing date and allows you to use the patent pending notice immediately.
Non-Provisional Patent Applications
This is the complete patent application that undergoes full examination by the USPTO. Filing this application also grants patent pending status and begins the formal review process.
Benefits of Patent Pending Status
Having a pending patent application offers several advantages:
- Deterrent Effect: The patent notice warns competitors that you’re seeking protection for your invention
- Marketing Advantage: Products marked “patent pending” often appear more innovative and valuable to customers
- Early Filing Date: Establishes your priority date for the invention
- Time to Test: Gives you time to refine your invention and test market demand
- Potential Damages: If your patent is eventually granted, you might be able to collect damages from infringers dating back to when you published your patent application
What Patent Pending Doesn’t Do
It’s important to understand the limitations of patent pending status:
- You cannot sue for patent infringement while your application is pending
- The provisional status doesn’t guarantee your patent will be approved
- Others can still make and sell similar products until your patent issues
- The patent notice alone doesn’t provide legal protection
How to Properly Use Patent Pending Notice
Once you’ve filed with the USPTO, you can mark your products with patent pending status. Common ways to display this include:
- “Patent Pending”
- “Pat. Pend.”
- “Patent Applied For”
- Including your application number: “Patent Pending: Application No. XX/XXX,XXX”
Be careful to only use these markings after you’ve actually filed your USPTO filing. Using patent pending notices falsely is illegal and can result in fines and legal consequences.
How Long Does Patent Pending Last?
The duration of patent pending status depends on several factors:
- For provisional applications: Maximum of 12 months before you must file a non-provisional application
- For non-provisional applications: Typically 1-3 years until the patent is granted or denied
- With delays or appeals: Can extend to 5 years or more in complex cases
What Happens After Patent Pending?
Your pending patent application will eventually result in one of these outcomes:
Patent Granted
If approved, you receive full patent rights and can enforce them against infringers. Your product marking changes from “Patent Pending” to include your patent number.
Patent Denied
If rejected, you lose patent pending status. You may be able to appeal or file a new application with modifications.
Application Abandoned
If you don’t respond to USPTO communications or pay required fees, your application becomes abandoned and you lose provisional status.
Key Takeaways
Patent pending is a valuable status that begins when you file a patent application with the USPTO. While it doesn’t provide full patent protection, it offers important benefits including deterring competitors, establishing a priority date, and allowing you to test your market. Understanding how to properly obtain and use patent pending status is crucial for inventors and businesses looking to protect their innovations.
Remember that patent pending is temporary. To maintain protection for your invention, you’ll need to actively pursue your patent application through the examination process until you receive an issued patent.
