What Does Patent Pending Mean?

by | Jan 19, 2017 | INTELLECTUAL PROPERTY | 0 comments

The term “patent pending” is entering our mainstream vocabulary thanks to reality based entrepreneurial shows such as Shark Tank and prominent displays on the shelves of any home goods store.  The term “patent pending”, also shortened to “pat. pend.”, “pat. pending” or “patent applied for,” is a legal title that can be used by a patentee (one who files a patent application) to show that a patent application for a product or process has been filed with the United States Patent and Trademark Office (“USPTO”).  The legal purpose of the “patent pending” term is to put businesses, the public and potential infringers on notice that they may be liable for damages if they copy the protected invention.

Use of the term “patent pending” or “patent applied for” is allowed on a product so long as a patent or provisional patent application has been filed. If the “patent pending” term is used when no patent application has been filed, it is deemed a false marking and a fine of up to $500 per offense may be imposed by the court.[1]   A provisional patent only allows use the term “patent pending” during the 12-month life of the provisional patent application.[2]   After that time, the ability to use the “patent pending” term, and the provisional patent itself, will expire.

A formal patent application must be filed within 1 year of the provisional patent application.[3]   The formal application allows the “patent pending” term to be used throughout the formal patent application process and the sometimes years-long application review process.  Patent applications are extensively reviewed before approval and multiple drafts may be necessary if the USPTO sends the application back to the patentee for resubmission.

More than just a legal term, the “patent pending” mark allows a patentee to scare off potential infringers. If the invention is copied by a competitor during the application review process, an injunction (court order directing one to refrain from a certain act) can be sought to halt the infringing manufacturer from producing the patent-pending invention until after the review process has been completed. Once the patent application has been accepted by the USPTO and the patent is issued, the patentee can then collect damages for any infringement that occurred while the application was pending.

Although it holds no legal weight on its own, the magical “patent pending” term can serve as an insurance policy for the future while working through the long and extensive patent application process.

[1] 35 U.S. Code § 292

[2] 35 U.S. Code § 111

[3] 35 U.S. Code § 111

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