So what does patent pending really mean?


    The Question

    A frequent question I get from some new clients is "How do I get a patent pending? This is another of those frequently misunderstood concepts in patent law.

    Is it valuable? Yes - it sometimes is. Does it give you powerful legal rights? Not really.

    Once you have filed either a regular non-provisional U.S. filing or a provisional application you can legally and ethically proclaim that you have a "patent pending". Or, as some proclaim - "patent applied for".

    But what does that mean?

    Neither of these phrases have a strong legal meaning. By that I mean they do not mean that your product or process or method is protected by patent - yet. On the other hand, by being able to use these phrases you are announcing to the public that the process of obtaining a patent has been officially started and is pending in the patent office. That it itself is often enough deterrent to keep anyone from the idea of either trying to file a patent themselves or trying to create an infringing product.

    A Misconception

    A common misconception of some is that just a patent pending will not stop an aggressive competitor from copying your product but in fact my experience has been that it is a deterrent. If you think about it very few companies are going to invest the money required to develop a new product that they might get shut out of later. Product development of a new product is risky enough without the added threat of infringement.

    Once you have filed your provisional or non-provisional application you can feel free to mark the product as patent pending.

    Beware of a false sense of security from a pending patent however. A pending patent in and of itself gives you no legal right until a patent issues.

    For some companies and inventors the perception of an impending patent is important enough that it is considered a marketing tool for their business. It may help them in raising some investment capital for a new venture. Potential consumers of the product may be more likely to believe it is a cutting edge product if a patent has been applied for.

    Here are some of the official words from the USPTO regarding both marking and patent pending:

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    A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word "Patent" and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.

    The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms "Patent Applied For" or "Patent Pending." These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.

    ============================================================== False Marking

    Note the warning about false marking. U.S. patent law provides a penalty for either marking a product as patented or patent pending when that is not the case. Be very careful about sloppy use of these terms. False marking with intent to deceive the public can result in a fine of up to $500 per offense.The bottom line - you can use the term patent pending once you have filed a provisional application. However - if you do not follow up the provisional within 12 months with a non-provisional then the provisional is abandoned then you must stop using the term patent pending.


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    Mike Ervin
    Mike Ervin - Cost Effective Small Business Patent Protection.

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