How to Get a Patent Pending: What Is the Process?

If you want to get a patent pending, all you need to do is file a provisional patent application (PPA) with the U.S. Patent and Trademark Office (USPTO). Filing the application involves clearly describing your invention and paying a fee ranging from $65-$260, depending on your business size. With the application filed, your invention has patent pending status.

The U.S. Congress set up the provisional patent application as a fairly quick and easy way to get patent pending status. The idea is to let inventors show their work to investors without worrying that they'll steal it. To file a PPA, you need a $65 application fee if you qualify as a micro-entity or $130 if you're a small entity. Larger firms must pay $260. The provisional patent application is less work and cheaper than a non-provisional patent application. Still, the PPA is enough to get you patent pending status.

For the application, you give a detailed description of your invention. It must include how to make and use it. Include drawings of your invention. Because the USPTO awards patents to whomever files the earliest, you want to file a non-provisional application within one year of filing your PPA. Doing so lets you capture the PPA filing date, giving you an earlier (and better) date for your application.

When you've filed your application but haven't yet received a patent, your invention has patent pending status. Patent pending status no longer applies if you abandon your application.

The Problem That a Patent Pending Status Addresses

Many manufacturers won't sign a non-disclosure agreement before seeing an invention. But inventors don't want to reveal their work without some safeguards. An inventor who's submitted a patent application can put the patent pending status on the product and all its marketing materials. You can use the term "patent pending" or similar phrases such as "patent applied for." It's illegal to use the patent pending notice if you haven't filed a patent application. Each use can earn you a $500 fine.

The patent pending status is enough to stop most companies from stealing your idea. They don't want to face a patent infringement lawsuit if you eventually get a patent.

What Are the Benefits of Getting a Patent Pending Status?

Patent pending status gives you no legal rights. You only have the right to protect and defend your invention after the USPTO grants your patent. However, patent pending does impress and influence licensees, consumers, and investors. It adds credibility to your invention because you believe it's worth patenting.

If someone steals your work when the patent is pending, you can sue that person after you have your patent. There are repercussions for copying your invention during the patent pending process: Damages start to add up 18 months after you file your application. When the infringement is willful, a court may award triple damages. Once you have your patent, you can get a court order telling the offending company to stop making your product. Because of the penalties, most companies won't steal inventions labeled patent pending.

The patent pending status only informs others that you've submitted a patent application. Think of it like a warning. Once you have the patent, you can go after anyone who's taken your work. But companies are only liable for taking your invention if you've told them it's patented.

The provisional patent application is an especially good tool to protect inventors. With its lower fee and less demanding requirements, it buys you a year. During that year, you can use the patent pending status. Within the year, you must file a regular patent application or the office tosses your application.

A perk of the PPA is that it doesn't count toward the length of your patent. Patents are good for 20 years from the date you file your regular application. The PPA also buys you a year to file foreign patent applications.

How to Get a Patent Pending With an Attorney

Most attorneys will do a patent search, prepare your application, and file it. For extremely simple inventions such as earmuffs or a coat hanger, attorney fees range from $5,000 to $7,000. The patent search can cost up to $1,250. Though inventors can do their own searches, professional searchers usually find prior art a non-professional will miss. Highly complex inventions have attorney fees of $14,000 to $16,000. Hiring a lawyer to file a patent application for software will cost more than $16,000. These are estimates, of course.

The actual cost to hire a patent attorney depends on how complex the invention is. A lawyer can write a simple application for a few thousand dollars. But the patent may not be broad enough to protect your work. Securing a stronger patent means your application must include more claims and alternatives or modifications to your product. This kind of application costs much more because it requires so much detail.

There will be post-filing fees to pay your lawyer. The patent examiner may request additional information from your attorney. Because the patent application process is highly complex, it's best to work with patent attorneys and agents.

How to Get a Patent Pending Without an Attorney

Federal law requires the staff at the USPTO to help inventors who apply for a patent without a lawyer. There are two primary requirements:

  • Your invention must meet patent qualifications.
  • You must describe your invention completely.

If you want to file a patent application, here are the steps:

  • Track the invention process
    • You may want to make a prototype.
    • Have two witnesses verify each major step.
  • Ensure your invention qualifies for a patent as detailed in 35 U.S.C. 112
    • You have to show how to make and use the invention.
    • It must be new.
  • Determine how likely the invention is to sell.
    • It can cost around $1,500 for a patent by the time you pay fees and other costs.
    • Research the market to ensure it's worth spending the money to patent your invention.
  • Search existing patents to see if your invention is new.
    • Check the internet for patents on inventions like yours. The legal term for previous inventions that are similar to yours is "prior art."
    • Browse a Patent and Trademark Depository Library.
    • When you find similar inventions to yours, note how yours is different or improves on past inventions.
  • Complete and file an application with the USPTO
    • Complete either a provisional patent application or a non-provisional patent application.
    • Pay the fees.
    • Include drawings. When done professionally, they can cost $300 to $500.
    • Detail how to make and use the invention. This can be a technical paper for a journal.
    • Avoid describing your invention using limiting words like "necessary" and "must."
    • Be broad in how you describe your invention.
    • Provide a cover sheet.

Don't try to skip the prior art search. It can cost you a patent because the USPTO will not issue a patent if your invention is too similar to a patented product.

If you file a provisional patent application, it's a substitute for building and testing the invention. As a result, you don't need patent claims, a statement swearing you're the inventor, nor a list of all similar patented inventions.

When Does the Patent Pending Status End?

Most people wait one to three years for the USPTO to issue a patent or deny the application. For electronic or software-related inventions, patent pending status can last from three to five years or more.

You can also try for a prioritized examination, sometimes called Track One. Utility and plant patent applications can get faster consideration through Track One. Only a few applications get sped up each year. For faster service, you have to pay hefty service fees to the USPTO. Expect to get a patent or denial within 12 months of getting upgraded to Track One.

Getting a Patent Pending Status in the U.K.

The United Kingdom's patent office, the UKIPO, marks a patent application's date as the day after it's put in the post. By contrast, the European Patent Office and patent offices in many other countries mark the filing date as the date the application arrives in their offices. Ideally, you should wait to claim patent pending status in the U.K. until after you have an application number. Because it's a crime to use patent pending when your application isn't officially on file, it's best to receive confirmation that the patent office has your application before using the label.

When you work with attorneys, you have less stress about the office receiving your application because they can submit it through an online portal. They receive an electronic receipt, which is evidence enough to allow you to use a patent pending label on your product.

Alternatives to the Patent Pending Process

If you don't want to do a PPR or utility (regular) patent application, go for a trademark. States and the federal government have rules for issuing trademarks. A trademark protects your product's name. To get a trademark, use your product's name as much as possible. Many states require its use publicly before you can apply for a trademark. The federal system requires the trademark to be used in business deals between two or more states.

After you secure a trademark, use the TM or circle-R symbol. The symbols let other people know the product name is protected. Follow state laws for how and when to use the symbols. For most states, claiming trademark rights is free. All you do is add TM to your product's name. (You can add TM by typing the two letters in parenthesis in most word processing software.) When you register your product's name with the USPTO, you can use circle-R. (Create the circle-R symbol by taking an "R" in parenthesis.)

Trademarks, patents, and patent pending are just some of the tools you can use to protect your intellectual property. If you need help deciding which tool is right for your invention, post your question on UpCounsel's marketplace. UpCounsel works exclusively with the top 5 percent of lawyers who apply to the site. UpCounsel lawyers are graduates of top law schools such as Yale and Harvard. They have an average of 14 years of experience. Many have worked with high-profile companies such as Google, Stripe, and Twilio.