tm logo

Resources

Patent Support

What Does Patent Pending Mean

What Does Patent Pending Mean?

Joshua Julien Brouard

Joshua Julien Brouard

19 October 20233 min read

share this blog

What does patent pending mean

To register your patent, you must understand the terminology, including frequent phrases such as patent pending. In this article, I'll explore the question of what does patent pending mean and take you through how you can get this preliminary protection for your invention.

What patent pending doesn't mean

When defining what patent pending means, it's essential to understand what it doesn't mean.

Simply saying that your invention is "patent pending" doesn't offer you any legal protection. You must file a patent application with the United States Patent and Trademark Office (USPTO) to acquire patent pending status.

And this doesn't mean that the USPTO has approved your patent. It simply means that your patent is in the process of potentially being approved.

So this begs the question:

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

Wait, what does this mean?

Well, in a nutshell:

It means that should someone apply for a patent for the same invention at a later date, your patent application takes precedence. 

Take note: You may see "patent pending" take the form of "patent applied for," "Pat. Pending, or even "Pat. Pend.".

Are there any other reasons why patent pending is essential?

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

Consider the status patent-pending can offer you when it comes to customers. Some may even purchase from you solely because they believe your products to be cutting-edge.

And because a patent generally lasts up to 20 years from the filing date, you have plenty of time to capitalize!

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


FAQs

Is patent pending a good thing?

Yes, having a patent pending attached to your invention means that your patent is pending comprehensive legal protection. Having the patent pending notice also deters competitors from attempting to patent a similar invention, as yours has a priority filing.

How long is patent pending good for?

Patent pendency granted through a provisional patent application is valid for 12 months. However, you may retain that status for a few years on regular applications, depending on the type of patent filed.

Can I sell a product that is patent pending?

Yes, you can sell a product that is patent pending. The status doesn;t restrict your ability to use your invention in commerce but merely acts as a deterrent for opportunistic competitors.

Can someone steal my idea if I have a patent pending?

Patent pending status doesn't prevent others from stealing your ideas. But if they steal your idea, you send a cease and desist letter, and they can continue to use your invention — and your patent is granted, they could be in for substantial legal expenses.

share this blog

Joshua J. Brouard brings a rich and varied background to his writing endeavors. With a bachelor of commerce degree and a major in law, he possesses an affinity for tackling business-related challenges. His first writing position at a startup proved instrumental in cultivating his robust business acumen, given his integral role in steering the company's expansion. Complementing this is his extensive track record of producing content across diverse domains for various digital marketing agencies.