What Does Patent Pending Mean?

If you're looking to register your patent, it's crucial that you understand all of the terminology, including frequent phrases such as patent pending.

In this article, I'll be exploring what patent pending means and taking you through how you can get this preliminary protection for your invention.

What patent pending doesn't mean

In the journey of turning an invention into a patented product, the term "patent pending" often surfaces, but it's essential to understand its limitations clearly.

Misinterpretations of this status can lead to misguided expectations and strategies.

1. Patent pending is not a form of legal protection:

A fundamental misunderstanding is assuming that the label "patent pending" equates to a form of legal protection or patent rights.

This is not the case.

The designation simply indicates that you have submitted a patent application to the United States Patent and Trademark Office (USPTO).

While this is an essential step in the patent process, it does not provide any legal enforcement capability against potential infringers.

This distinction is crucial for inventors to understand as they navigate the marketplace and protect their ideas.

2. No guarantee of patent approval:

Another critical aspect to comprehend is that having your invention in a patent pending state doesn't imply imminent patent approval.

The phrase indicates that your application is under USPTO's consideration, but it doesn't prejudge the outcome.

The patent examination process is thorough and includes an assessment of factors such as:

• Novelty
• Non-obviousness
• Industrial applicability 

Thus, while patent pending status is a necessary step in the patenting journey, it doesn't assure that the patent will ultimately be granted.

3. The process of review is underway:

The statement that an invention is patent pending serves as a public notification that the inventor has initiated the official patent review process.

This is a period during which the USPTO is examining the patent application. This process can be lengthy and involves various stages of scrutiny, including a detailed examination of prior art and an evaluation of the invention's uniqueness and inventiveness.

Understanding the implications:

The absence of immediate legal protection during the patent pending phase necessitates a cautious approach by inventors.

It's essential to be mindful of how the invention is disclosed and marketed during this time.

While the patent pending status can be an essential tool in deterring potential infringers by indicating that a patent may soon be issued:

It's not a substitute for the actual legal protections a granted patent offers.

What sort of legal protection does patent pending offer me?

So, if your patent hasn't been granted but is merely pending, what benefit does patent pending offer you?

Well, consider this hypothetical scenario:

You've devised an idea for a unique, never-before-used design for a lava lamp. You decide to sell your lamps online, but not before registering for a patent. This gives you the right to say that your lava lamps are patent pending.

So, while you don't have official patent protection, should someone use your design, you can issue a cease and desist letter.

And should your patent be approved by the Patent Office, the infringer will be liable for patent infringement and backdated monetary damages.

Spencer Keller, one of our Patent Attorneys, had this to say:

“The patent process can take a good chunk of time to complete, but once a patent application is filed, the inventor may market their product as "patent pending." Most of us have either heard that phrase in a TV commercial or seen it physically listed on a product, but the rights associated with "patent pending" status go beyond marketing value. 

Before 1999, "patent pending" had very little value, but after the passage of The American Inventors Protection Act of 1999, things changed significantly. Now, inventors can sue for infringement during the patent pending period (e.g. before the patent is granted), but they must market their item as "patent pending" and they must wait until the patent is granted to file a lawsuit. 

For example, say I file a patent application for a new pen and begin selling this pen with "patent pending" labeled on it. 

If my application takes two years to be granted and a competitor is making an exact copy of my pen during that two-year period, then I could sue that competitor for damages during that two-year patent pending period, but I can only initiate this lawsuit after the patent for the pen has been granted.”

Pretty convenient, isn't it? Patent pending lets you bring your invention to the public before patent approval while potentially mitigating the risk of doing so. 

That's neat! And are there any other benefits?

Patent pending gives you priority date for the invention

The concept of a priority date is a fundamental aspect of patent law, playing a pivotal role when multiple individuals or entities vie to patent similar inventions.

When your invention is designated as patent-pending, it's not just a status update — it's a strategic move to establish your place in the patent queue.

The significance of priority date

So, what exactly does "priority date" mean?

In the realm of patents, the priority date is when your patent application is first filed.

It acts as a marker, establishing when your claim to the invention was officially recorded.

This date becomes critically important in determining the novelty and originality of your invention, especially in cases where similar inventions are being developed independently by different parties.

If another inventor files a patent application for an invention similar to yours after your filing date, your application has a crucial advantage.

The priority date you've established with your initial filing acts as a timestamp, proving that you were the first to consider this specific invention.

In the world of patent law, being first is often synonymous with being the rightful inventor.

This system rewards those who promptly and diligently seek patent protection for their inventions.

By filing your application early, you stake your claim and secure your rights to the invention, even before the patent is officially granted.

Variations of the patent pending term

Knowing the different terminologies used to indicate that a patent application has been filed is essential.

"Patent pending" is a common term, but it can appear in various forms such as "patent applied for," "Pat. Pending," or "Pat. Pend."

Despite the different phrasings, each indicates that an application has been filed and a priority date has been established.

These terms serve as a public declaration that an inventor has initiated the patent process.

Learn more: read our "Patent Filing 101" guide to learn more about the patent process. 

Are there any other reasons why patent pending is essential?

Yes, there are several reasons why patent pending is important:

• Market perception and consumer trust: Patent pending status often elevates a product's perceived value in the eyes of consumers. It suggests innovation and uniqueness, which can be compelling factors for customers, potentially influencing their purchasing decisions.
• Attracting investors and business partners: For investors and business partners, patent-pending indicates a level of seriousness and commitment to protecting intellectual property. It enhances the attractiveness of the product or invention as a potential investment or business opportunity.
• Long-term commercial advantage: With a patent typically lasting up to 20 years, the patent-pending status begins the journey towards securing a long period of market exclusivity. This exclusivity allows the patent holder to establish a strong market presence, potentially leading to significant financial benefits.
• Foundation for global expansion: Patent pending status can also be the first step in seeking international patent protection, which is crucial for inventors aiming to enter and compete in global markets.

So, how do I get my invention patented?

To get your invention patented and get use of the phrase "patent pending", you'll have to complete a patent application with the USPTO.

It's advised to seek the expertise of a patent attorney who can guide you through the process of getting your invention patented.

Ready to get the process started? File for a patent today at Trademarkia, Patent Express.