Patent Pending: Definition, Example, How It Works, Vs. Parent

What Is Patent Pending?

The phrase patent pending is marked on a product as a notice that its inventor has begun the process of applying for exclusive rights to use, sell, or license the product. In the U.S., it means that a provisional patent application has been submitted to the U.S. Patent and Trademark Office (USPTO).

The patent-pending notice is meant to warn potential copycats that they may be sued if they copy the idea, if and when the patent is approved. It also establishes the fact that a patent application has been filed and thus would have priority over any application to patent a substantially identical idea that was filed on a later date.

Most patents are awarded for a unique process or design.

Understanding Patent Pending

The patent-pending notice has no legal force in itself. The product or process is not legally protected at that point.

However, it warns potential competitors that a patent application has been filed and that they can be sued for patent infringement after the patent is granted if they lift the idea. Moreover, the patent protection will be backdated to the date that the provisional patent application was filed.

A patent-pending notice indicates that an application date has been established.

Patent Application Date Is Key

Applications for a patent are considered in the order in which they were filed. If two or more inventors apply for a patent for a substantially identical product or process, the applicant who filed earliest will get the patent.

If the patent is granted, the patent-pending disclosure would strengthen the inventor's claim that a competitor knowingly stole an idea.

A patent holder may be able to collect damages, including back-dated royalties, or obtain an injunction ordering the copycat to stop using the idea. A court may even order the impoundment of products that were created without the authorization of the patent holder.

Placement of a Patent Pending Notice

An inventor might use the term “patent pending” in marketing materials, on product packaging, and on the product itself. There is no standard notification. Some inventors use variations of the term, such as “Pat. Pend.” Some also display the provisional patent number attached to it by the Patent Office.

Once a patent has been granted or denied, the inventor can no longer use the words “patent pending.”

Special Considerations

The United States Patent and Trademark Office (USPTO) requires that the words “patent pending” be used in good faith. In fact, it can impose fines of up to $500 for a violation, which is considered false marketing.

The patent-approval process is lengthy. It typically takes nearly two years but can take as long as five years or more. The "patent pending" designation gives the inventor some level of protection in the meantime.

A patent-pending status granted through a provisional patent is meant to last for one year. Its use can be extended, however, if a patent application is rejected and then revised and resubmitted.

Once granted, a patent is valid for up to 20 years from the patent application filing date for utility and plant patents, and 14 years from the date the patent was granted for design patents.

The use of a patent-pending designation can effectively extend that protection by a year.

Types of Patents

There are five distinct types of patent, but the most often sought are for the protection of a process or a design:

• A utility patent is granted to the inventor or discoverer of a new and useful process, machine, article of manufacture, or composition of matter. An improvement on an existing version of one of these may also qualify for a utility patent.
• A design patent is granted to the inventor of a new, original, and ornamental design for a product.

Additional types of patents include:

• A plant patent protects the rights of a scientist who asexually reproduces a distinct and new variety of plant.
• A reissue patent can be issued to correct an error in an earlier patent.
• A defensive publication patent is limited in scope and is aimed only at preventing anyone else from patenting an invention, design, or plant.

Advantages and Disadvantages of Patent Pending

The provisional patent application gives an inventor one additional year of potential protection for an invention.

A utility patent protects an invention for 20 years. A design patent lasts for 14 years. If the provisional patent application is approved, the inventor has already had one year in which to refine a product and complete a full patent application.

The inventor may market the product with a patent-pending designation to notify rivals that copycats will be pursued when and if the patent is awarded.

In a fiercely competitive market, an inventor can use the provisional patent application process to stake a claim on an idea before a rival gets there.

A potential disadvantage is the danger of disclosing trade secrets. A provisional patent application must include enough detail to support the formal application that will follow. And that could alert business rivals to what's coming.

How to File for Patent Pending Status

A provisional patent application is a formal document filed with the U.S. Patent Office that establishes a priority filing date for a patent application. It is good for one year, by the end of which the full application must be filed.

Meanwhile, the inventor may attach the patent-pending label to the product or process that will be considered for patent protection.

Patent Pending Infringement

There's not much that an inventor can do to stop a copycat from stealing an idea while it is in the patent-pending stage. However, if and when the patent is approved, the inventor can take full legal action.

Moreover, the penalties can be imposed for violations that began when the product achieved patent-pending status. That is the date that the provisional patent application was filed.

Unintentional and Willful Infringement

U.S. law distinguishes between unintentional and willful patent infringement. Unintentional patent infringement occurs when an inventor or an entrepreneur comes up with a bright idea and takes it to the market, not realizing that someone else has a patent on the same product or process.

Willful patent infringement occurs when a person or a company outright steals an idea that has been patented and drops a copy of it on the market.

The penalties for unintentional infringement may come to about the same amount as the violator would have paid to license the use of the patented product. Willful infringement, if it can be proven, can result in triple damages being awarded to the patent holder.

The Global Complication

It is the responsibility of the patent holder to identify violations of the patent and to pursue them legally.

That's difficult in a single country and becomes near-impossible on a global scale. Let's say an American invents and patents a unique process to make a zero-calorie apple pie. Then an entrepreneur in Laos or Finland or Azerbijian steals the idea and turns it into a local sensation.

Is it likely that the patent holder will find out?

Example of Patent Pending

Patent-pending status may be awarded to near-identical inventions repeatedly before a version of it is awarded a patent and comes on the market, if indeed one ever does.

Say an entrepreneur named Joe has an idea for a new product. He conducts a patent search and finds that another applicant has already been granted a provisional patent for an invention that is virtually identical.

A year later, Joe searches the patent database again and discovers that the provisional patent has not been renewed. He immediately hires a patent attorney and files for a provisional patent.

After filing for a provisional patent, Joe manufactures a prototype of his new product and markets it with a patent-pending sticker. But after the product hits the market, Joe discovers that the regulatory and capital improvements required for mass-manufacturing his product are too steep.

Joe abandons the patent after a year, and the idea becomes available once again.