Key Takeaways

  • The standard patent term in the U.S. is 20 years from the filing date for utility and plant patents, and 15 years from the grant date for design patents.
  • Patent-pending status typically lasts 1–3 years, though complex applications can remain pending longer.
  • Patent term extensions or adjustments may apply if delays occur at the USPTO or with regulatory agencies.
  • Maintenance fees are required for utility patents at 3.5, 7.5, and 11.5 years after issuance; nonpayment can cause early expiration.
  • Filing internationally under treaties like the PCT affects timing but not the 20-year duration once national filings are made.
  • Early filing and avoiding unnecessary continuations can maximize the enforceable life of your patent.

How long does a patent pending last? This phase of the patent process can last from one to three years, or longer depending on the complexity of your invention. Software or electronics applications are often patent pending for five years or more. This period starts when you submit either a provisional or non-provisional patent application to the U.S. Patent and Trademark Office (USPTO). It ends when they grant or deny you a patent. The application backlog at the USPTO and the complexity of your application also affect how long your patent is pending.

How to Get a Patent Pending

The cheapest way to get a patent pending is to file a provisional patent application (PPA). Congress set up this option to help inventors. The cost of a PPA ranges from $65 for micro-entities, to $139 for small entities, and up to $260 for large entities. The PPA does not put your application in front of an examiner. It's a placeholder that gives you one year to file a regular patent application.

To get a patent pending, complete and file an application. The packet should include:

  • A cover sheet
  • A detailed description of how to build and use your product
  • Drawings of your invention
  • The required fees

Filing a PPA does not require a list of patent claims, all similar patented inventions, nor a statement that you invented the product.

You can submit your PPA and the supporting materials in person, by U.S. Priority Express Mail, or online at the EFS-Web, the USPTO's online filing portal. If you mail your application, wait to receive confirmation that they got it before using the patent pending label. With the electronic system, you get immediate confirmation that the USPTO has received your application. That means you can use a patent pending status immediately. Once you submit the application, the USPTO will send you a patent pending serial number. This number tells other people you've applied for a patent.

Using a PPA allows you to grab an early filing date even if you aren't quite ready to turn in a regular application. You must turn in the non-provisional application within a year of filing your PPA to hold on to its filing date for your patent application. If someone else files for the same invention, the USPTO will award the patent to the person with the earliest filing date. The USPTO will toss a PPA when you don't file a regular application within one year.

During the year between filing the PPA and filing a regular patent application, you can test your product in the market. Make sure it's going to do well before spending the money on a utility or plant patent application.

Patent Pending for Provisional vs. Non-Provisional Applications

The time period from application to patent receipt depends on whether you file a provisional or non-provisional application. Non-provisional applications are placed in a queue and examined in order of receipt once all documentation has been submitted. The average wait time is about 21 months until examination and about 32 months until the application is approved or denied.

Inventions in certain technical areas may have a shorter wait time. This depends on how many examiners are available in that particular specialty, known as an art unit. Each art unit has a separate queue with a separate wait time.

Provisional patent applications, on the other hand, are not placed in a queue. Instead, you'll have a year from the filing date to submit a complete non-provisional application. Once you do so, your application will be queued for examiner review.

Protections for Patent Pending Inventions

During the patent pending phase, inventors have no legal rights. They can't sue someone who steals their idea. But once they have a patent, inventors can sue someone in federal court for taking their idea. The court can award damages going back through part of the patent pending time period. Damages begin building up from the date the USPTO publishes the application. Often, these penalties strongly discourage another company or person from taking your work. Patent attorneys say you should only talk about your work after it has a patent pending.

Many investors, licensees, and potential buyers appreciate the credibility that comes with a patent pending designation. It can help you secure financing and market your product. When you have a patent pending, you don't have to ask investors or manufacturers to sign a non-disclosure agreement (NDA).

How Long Do Patents Last by Type

Different patent types have distinct durations:

  • Utility Patents: 20 years from the non-provisional application filing date. These cover new and useful processes, machines, or compositions.
  • Design Patents: 15 years from the date the patent is granted (for applications filed on or after May 13, 2015).
  • Plant Patents: 20 years from the filing date, protecting new plant varieties reproduced asexually.

These durations assume maintenance fees are paid (where applicable) and no extensions or term adjustments alter the end date. This distinction helps clarify why some patents expire earlier even if filed around the same time.

Track One Examination

Prioritized examination, called Track One, is offered by the USPTO for a limited number of applications each year for an additional fee. This substantial cost allows you to receive a final approval or rejection within 12 months.

Using the Patent Pending Designation

Once your patent is pending, you can put a notice on your product and any collateral you use to promote it. It's legal to use patent pending in these cases:

  • You've filed a provisional, design, or utility patent with the USPTO.
  • You've received an Office Action from the USPTO within the last six months.
  • You've received a Notice of Allowance from the USPTO, and you've paid the fee, but the office hasn't given you a patent yet.

No set standards exist about how to mark your product with a patent pending status. You can use any of these or similar terms:

  • U.S. and Foreign Patents Applied For
  • U.S. Patent Applied For
  • Pat. Pend.
  • U.S. Patent Pending
  • Patent Pending
  • Patents Pending
  • Patent Applied for in the U.S. and Abroad
  • Patent Applied For
  • U.S. Pat. Pend.

The notice you use must be accurate. Don't use U.S. abroad if you've only applied in the U.S. Place the notice in a visible spot on your product, website, and other materials.

When Patent Pending Should Not Be Used

It's illegal to use the patent pending label on your product or promotional assets if you haven't applied for a patent or you've already received your patent. The label only applies when you're waiting for the USPTO to approve or deny your application. The fine is $500 for each time you falsely using the patent pending designation.

When to avoid using patent pending in marketing:

  • You've hired an attorney to do your application.
  • You have an application draft from your lawyer to edit.
  • You receive a patent.
  • You abandon your patent application.

A patent pending notice continues until your patent is no longer pending with the USPTO. After the USPTO gives a patent or the inventor abandons the application, the inventor can no longer use the patent pending notice without breaking the law. Once inventors receive a patent, they replace "patent pending" with the patent number. It can look like this: Pat. No. #######.

How Long Does It Take to Get a Patent?

From beginning to end, the patent process is lengthy. Here are the typical steps:

  • Search for patented works, known as prior art, that are similar to yours. An attorney usually completes this task in one to three weeks.
  • Draft the patent application. Many lawyers can give you a draft in two to four weeks. The lawyer's caseload, the complexity of the invention, and the information provided by the client influence how long it takes to write a draft.
  • After the application is filed, the inventor can use the patent pending status. This is a good time to begin marketing or licensing your invention.
  • The wait depends on whether you file a provisional patent application (PPA) or non-provisional application.
    • With a PPA, the patent examiners do not review your material. They merely assign your application a filing date. Having an early date is good if someone else tries to patent your invention. You have to file a non-provisional patent application within one year of filing a PPA or you lose your early filing date.
    • The wait for a non-provisional application ranges from one year to more than five years.
    • Some technical areas have a longer wait due to a backlog.
    • You can pay a fee to get a prioritized examination. The USPTO offers these on a limited basis. The review happens within one year of an application getting put on the fast track.
    • Receive a determination (a patent or denial) from the USPTO.

Filing an application in the U.S. does not always result in a patent. An invention must pass the prior art search and be deemed patentable. There are a few countries that give a patent to anyone who files an application without examining the application.

If you get a patent, it will last for 20 years from the date you submitted your full application. The filing date of a PPA does not count toward the 20 years.

Many patents are pending for several years. The processing time is lengthy because the USPTO has a big backlog of applications. With a utility patent application, expect to wait two to five years for the USPTO to grant a patent. Expect a shorter wait for design patents. The USPTO processes them in one to two years.

Whatever invention is described in your patent application is the one for which you receive patent protection. If you change your invention after applying, the new version of your product will not be included in the patent. This is an important consideration for anyone who continues tweaking their product after applying for a patent.

Maximizing the Effective Patent Term

Inventors can take steps to maximize the enforceable life of their patents:

  1. File early to secure the earliest possible filing date.
  2. Avoid unnecessary continuations and delays in responding to USPTO communications.
  3. Leverage Track One Prioritized Examination for faster approvals (within 12 months).
  4. Ensure accurate and complete applications to reduce back-and-forth with examiners.
  5. Manage international filings strategically to coordinate expiration dates across markets.

These practices help minimize the gap between patent issuance and commercialization, ensuring a longer effective monopoly period.

International Patent Duration

Patent duration in other countries generally aligns with the international standard set by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which mandates a minimum 20-year term from the filing date. However, each jurisdiction enforces its own rules.

If you file under the Patent Cooperation Treaty (PCT), the “international phase” lasts up to 30 months from the initial filing, after which you must enter national or regional phases. Although the PCT process delays the national filings, the 20-year term still starts from the original filing date, not the national entry date.

Certain countries—such as Japan and South Korea—allow limited patent term extensions for pharmaceutical or agricultural products delayed by regulatory review, mirroring the U.S. system.

What Is Limited Patent Life?

The longer your patent is pending, the shorter the life of your patent. That's because you have no legal rights to enforce a patent that is pending, but the 20-year limit for patent protection starts with your initial application filing date.

However, if an undue delay is caused by the patent office, this time period can be added to the total patent protection period through a process called patent term extension.

If your invention is infringed upon while your patent is pending, you cannot sue that person for infringement. For this reason, you should not disclose your invention while your patent is pending. However, if someone tries to patent a similar invention while your patent is pending, the USPTO will grant the patent to the patentable invention with the earliest filing date.

Patent Term Adjustment and Extension

While the general patent term is 20 years from the date of filing a non-provisional application, the actual enforceable period can vary due to administrative delays. The U.S. Patent and Trademark Office (USPTO) provides Patent Term Adjustment (PTA) to compensate for examination delays caused by the office itself. These include delays in issuing the first office action, responding to applicant replies, or granting the patent within a set timeframe.

Additionally, Patent Term Extension (PTE) can apply to inventions regulated by the FDA, such as pharmaceuticals, biologics, and medical devices. The extension offsets time lost during the regulatory approval process. The maximum extension is five years, and total market exclusivity cannot exceed 14 years from approval.

Applicants should note that extensions do not apply to design patents and that timely filing of requests for PTA or PTE is crucial to preserve rights.

Can Patent Pending Last Too Long?

Some people fear the patent pending status is ripe for abuse. The question came up in a court case that came before the Court of Appeals for the Federal Circuit, which is the U.S.'s leading patent court. The court ruled that someone can challenge a patent if they believe the applicant for trying to prolong the patent pending phase.

The case centered on patents held by Jerome H. Lemelson. He holds the recorder for having the most U.S. patents. His patents start in the early 1960s and continue past his death in 1997. He holds patents for barcodes and machine vision. According to his estate, 185 unexpired Lemelson patents exist as well as many pending patents. Lemelson's estate has gotten more than $1 billion in royalties from licensing his patents.

The companies involved in lawsuits say Lemelson and his lawyers kept the patents pending for so long that they hindered technological advancements in the field. The legal term for the defense is "laches." It means someone has delayed a lawsuit for no legitimate reason and has caused the other party to lose money as a result of the delay. The Lemelson case is the first time the laches concept has been applied in a patent pending case. The companies claimed that Lemelson and his attorneys kept asking for continuations or refiled applications multiple times.

Continuations are a normal part of the process. They give patent office examiners time to review the application. They can also allow the applicant to submit new claims. With repeated continuations, the patent pending process drags. In the Lemelson case, a patent application from 1953 was pending until 1963 because of refiling actions. In 1996, a magistrate concluded that Lemelson would take note of new inventions and then draft claims to include these inventions in his original application. Lemelson said this is what he did, but said it was a way to outsmart the competition.

Even though the magistrate's opinion went against Lemelson, the lower courts disregarded it. They said the laches concept doesn't apply with multiple patent refilings. It's rare that applicants use the Lemelson trick these days. Patents last for 20 years. The clock starts ticking from the filing date of the regular patent application, so any applicant-initiated delays count toward the total life of the patent.

When Do Patents Expire Early?

A patent can expire before its full term if certain obligations are not met. Failure to pay maintenance fees is the most common reason. Utility patent holders must pay maintenance fees at 3.5, 7.5, and 11.5 years after issuance. The USPTO provides a six-month grace period, but beyond that, the patent lapses unless reinstated with additional fees.

Patents can also expire early if court rulings invalidate one or more claims, if the owner dedicates the invention to the public, or if an inter partes review (IPR) or post-grant review (PGR) finds the invention unpatentable. Design patents and plant patents do not require maintenance fees, making them simpler to maintain.

Frequently Asked Questions

  1. How long do patents last in the United States?
    Utility and plant patents last 20 years from the application filing date, while design patents last 15 years from the grant date.
  2. Can patent duration be extended?
    Yes. Patent term adjustments (PTA) or patent term extensions (PTE) may be granted for delays caused by the USPTO or regulatory review.
  3. What happens if I miss a maintenance fee payment?
    Your patent will lapse, but the USPTO allows reinstatement if the lapse was unintentional and you pay the required surcharge.
  4. Does “patent pending” affect how long a patent lasts?
    No. The pending period doesn’t count toward enforceable protection, but it does start the 20-year clock once a non-provisional application is filed.
  5. Do international patents last longer?
    No. Most countries, under TRIPS, recognize a 20-year term from filing, though extensions for pharmaceuticals or delays in approval may apply.

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