What is a Patent Pending Search?

A patent pending search is a type of patent search that looks for patent applications that may affect whether your invention qualifies for a patent. Patent applications are not published until 18 months after they are submitted. Provisional patent applications are never published. Therefore, it is impossible for a patent pending search to be completely thorough.

Why Is a Patent Pending Search Important?

Even though a patent pending search can't provide you information about all existing inventions that relate to yours, the search is still important. It can give you insight into what your competitors are doing and ideas on how you can improve your invention. It can also tell you if there is any "white space" in your industry, meaning it that will let you know if there are any gaps where your invention might fit in.

Looking at patent applications can provide a model for your own application.

If you do your own patent pending search, it will cost you little to nothing and furnish you will valuable information.

How to Perform a Patent Pending Search Search

Performing a patent search is a complex process, but you can become good at it with practice.

Some inventions labeled as patent pending have the patent application number displayed. Using this number, you can go to Google Patent Search or the USPTO database and quickly look up the application. When you're using the USPTO resource, keep in mind that there are two databases: one for patents, and one for patent applications.

In most cases, you won't have patent application numbers to work with. Instead, search for patent owners, specific inventors, or keywords that relate to the invention.

Both Google and the USPTO database are helpful when you want to do a patent pending search. Free Patents Online also has a wealth of patent documents available in PDF format. Regardless of which tool you use, be sure to look for a Help Section that will give you extra insight into how to get the most out of your search.

Here are a few more patent database tools:

  • Espacenet
  • AusPat
  • Patent Scope
  • SIPO Database

Here are some general tips to help you with your search:

  • Use a large variety of keywords. Some patents and patent applications use very technical or obscure language, so get creative when you're brainstorming keywords.
  • Use more than one search engine. They may provide you with different information.
  • Take advantage of Advanced Search options to narrow down your results.
  • Pay attention to the classification system. In the US, there are classes and subclasses of inventions. Find out which subclasses your invention falls into so you can keep your search focused. The U.S. and Europe share a classification system (the CPC), but if you're searching for patents in other parts of the world, you'll have to familiarize yourself with a different system.
  • Search for specific names in the database if you are looking for a specific patent application that belongs to one of your competitors and can't find the application under the company's name, try to find out the name of the individual inventor. 

The Patent Process

Here are the main steps you should follow when you want to get a patent for your invention:

  1. Be sure your invention is patentable. This is why a patent search is so important. If prior art exists that is too similar to your invention, you won't be able to get a patent. Prior art includes both patented and non-patented items. You also need to describe your invention in detail. Bear in mind that your invention can't already be for sale when you apply for a patent.
  2. Keep careful records. While you're inventing, keep a notebook that documents the invention process. Put your diagrams, brainstorming, and technical information there. Sign and date your entries. This information will help you later when you prepare your patent application.
  3. Consider if there is a need for your invention. You want to profit from your invention. If no market exists for your invention, you may not want to spend the money it takes to get a patent.
  4. Prepare and file your patent application. The patent application is complex and requires a high level of detail. You may want to hire a patent attorney to help you. There should be enough detail about your invention that someone with some skill in your industry could reproduce is. There is part of what might be referred to as "The Public Disclosure Patent Bargain," where you get protection for your invention if you tell the public how to make it.

Before you send your application to the USPTO, you might want to file a provisional patent application. This allows you to label your invention as "patent pending." This can warn away would-be invention thieves. A provisional application is valid for 12 months. It costs $65 for micro entities, $130 for small entities, and $260 for larger businesses. The application should have a detailed description of your invention and a drawing of it.

Some people choose to wait to do a patent search until after they've filed a provisional patent application, but it is wiser to do it before.

Frequently Asked Questions

  • Is it really necessary to perform a patent search or a patent pending search?

Some people claim that doing a patent search is not necessary if you already have an invention in hand. This is because when you file a provisional or non-provisional patent application, you have to sign an oath stating that you believe you are the original inventor of your product. If you haven't performed a patent search, you can sign the oath in good conscience and get patent pending status for your invention, which will last for at least a few years. The patent pending status will warn off would-be thieves.

  • Should you hire someone to help you with a patent search?

You can uncover a lot of information when you perform a patent search on your own. However, professional patent searchers are likely to find things that you missed. Hiring a well-qualified professional can cost between $1,000 and $3,000. The searcher, who may be an attorney, can also offer an opinion about whether your invention would qualify for a patent.

Another advantage to hiring help is that professionals know how to interpret patent applications. The applications are often very technical and require expertise to figure out. Professionals are familiar with patent law, too. For example, they know that even if an aspect of invention wasn't claimed on another patent, it can still count against you as prior art.

  • Are all patent applications publicly available?

No. Usually, patent applications are published 18 months after the USPTO receives them. However, inventors are allowed to submit a non-publication request that will keep the invention secret. Other patents are not published because of a government secrecy order. Keep in mind that all patent holders who want to get foreign patents must allow their applications to be published.

  • When is the best time to perform a patent search or a patent pending search?

It depends on why you're doing the search. If you want to discover a need for an invention, do a patent search before you start to innovate. If you already have an idea for an invention, do a patent search after you have a fairly well-developed product. A patent search should always come well before you prepare a patent application.

  • Is it ever possible to look at provisional patent applications?

Yes. These are never published, but the public may request to look at a copy of a specific provisional patent application if two things are true:

  1. A regular, or non-provisional, patent application was submitted that claims priority over the provisional application.
  2. The non-provisional application has been published or approved.
  • Is it possible to look at design patent applications?

No. The USPTO does not publish design patent applications. The applications it publishes are for utility patents.

Conclusion

A patent pending search is an important step you should take before you should submit your patent application. Many online resources exist to help you with your search. However, you should still hire a professional so you don't miss any key details.

If you need help with your patent pending search, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.