What Does Patent Pending Mean: Everything You Need to Know
Patent pending means that an application has been submitted to the United States Patent and Trademark Office (USPTO).7 min read
2. Why is Patent Pending Important?
3. Reasons to Consider Not Using Patent Pending Status
4. Reasons to Consider Using Patent Pending Status
6. What Could Happen When You Have a Patent Pending?
7. Frequently Asked Questions
8. Steps to File
Updated October 30, 2020:
What Does Patent Pending Mean?
Patent pending means that an application has been submitted to the United States Patent and Trademark Office (USPTO). When you submit an application for a utility, design, or plant patent, the USPTO issues a patent pending serial number, which serves to alert competitors and the public that you are in the process of seeking a patent on your invention.
The patent pending status does not protect the invention, and you can't sue for infringement if someone copies your idea. You only get full legal protection on your idea once the USPTO approves the patent. So, once you receive approval for your patent application, you can take legal action against someone who copies your product, design, or another idea.
In the United States, it is much harder to get a patent than it is in other countries. In fact, some countries approve patents on all applications that come through. The patent application process in the U.S. is more involved, with representatives from the USPTO performing thorough searches on existing patents and applications to make sure no prior art already holds a patent. The assigned USPTO official also will assess whether the idea is patentable.
If you have submitted a patent application and it is pending, you do have legal rights if someone else tries to file a patent application for something that is the same or very similar. The USPTO will look at the date each application was filed and give priority to the application with the earlier filing date.
The filing date does play a major role in obtaining a patent, especially if other people get wind of your idea and try to steal it before you can patent it, so it's crucial to start the filing process as soon as possible. It's best to avoid publicly disclosing your idea until you have submitted an application that is in patent-pending status.
Patent pending refers to both provisional and non-provisional patent applications. However, if you do not file a non-provisional patent application within the 12-month period after you submit the provisional patent application, effectively abandoning your patent application, you can no longer use the patent pending status.
Provisional patent applications involve much less work and cost less to file than nonprovisional patent applications. The provisional patent application fee is $110 for small firms and $220 for large firms. The application requires a detailed description of the invention, including how to make and use the item, and informal drawings.
Patent pending status starts when you file an application and ends when you abandon a patent application or receive approval of your patent. It can last between one and five years, depending on the complexity of the invention, what type of patent you applied for, and the backlog at the USPTO.
Why is Patent Pending Important?
Patent pending means that you are working toward getting your idea patented. It is important because the status can deter other companies from trying to copy your invention. Most companies will not invest the time or money to develop a product that could receive a patent in the near future. Customers may also see the patent pending status as a reason to buy, believing that your product is on the cutting edge.
It is also important for an inventor to understand the extent of the protection, even if a patent is approved. Using patent pending is acceptable on the exact product, design, or plant that is included in the application, but if you start changing your idea or design, you are no longer covered under patent laws unless you submit a new application.
Reasons to Consider Not Using Patent Pending Status
You should not claim the patent pending status until you have submitted an application with the USPTO. Once you have submitted the application, it is completely up to you whether to include "patent pending" on the product, materials, or packaging. Some companies and individuals choose to include it to inform the public that the patent application is on file with the USPTO.
If you choose not to go through the patent filing process, you should never use "patent pending" on any of your materials or on the product itself.
Reasons to Consider Using Patent Pending Status
If you have a patent pending serial number, you can begin using it on the packaging, marketing materials, ad campaigns, and other outlets. Some people choose to mark items sold with either "patent pending" or "patent applied for." Doing so will help alert competitors that you are in the process of receiving a patent on the product. If someone else tries to create and distribute a similar or identical product, you can take legal action once the patent has been granted.
Using any materials that listed the patent pending serial number as evidence can help create a stronger case against the person or company who infringed since these clearly show that you indicated patent pending status and that the patent was in process. If you can use your materials or product to prove that the other party willfully infringed on your patent, the damages are tripled. These risks make it less likely for others to copy an idea when it holds the patent pending status.
You may also be able to get a legal injunction to stop the other company or person from producing the product until the patent process is complete. If the patent does get approved, the holder can sue for damages for up to 18 months after the application is filed. But in most cases, it is difficult to take any type of legal action until you hold an approved patent.
When using the patent pending status on any materials, make sure to clearly state that the patent is pending. Misrepresenting a patent pending status could put you at legal risk, especially if your patent is denied.
There is no legal requirement to include the serial number on any materials. The only legal requirement is that you can only use "patent pending" as long as the application is still in process. Do not confuse the consumer by making it look like your product holds a patent when it is actually pending.
The deadline to file for patent protection is 12 months from the date that you first shared the idea publicly. If you need more time, you can file a provisional patent application, which is not as complex as a non-provisional patent application. USPTO reviewers do not look at provisional patent applications.
However, provisional patent applications have a 12-month window in which the applicant can file a non-provisional patent application, or they expire. If you use patent pending based on a provisional patent application, make sure to file the nonprovisional patent application within that window, or you will be in violation of patent representation laws.
What Could Happen When You Have a Patent Pending?
If your patent is pending, you can begin using this phrase, along with the serial number granted by the USPTO, to stave off competitors. Filing an application to get your invention into patent pending status can also protect your intellectual property. If anyone else wants to produce something similar, they will have to pay you to license the rights to it, so the potential for high earnings will increase if your idea is popular.
What Could Happen When Don't You Have Patent Pending?
Some inventors choose not to go through the patent process because it's very expensive and can take years to get approval. If you don't have a patent pending, you are at risk of having your idea copied and stolen by others. If you need to save up money to file a patent application or spend time perfecting the invention so you only have to file one patent application, it's best to keep your idea away from the public until you're ready to file.
If you choose not to file for a patent, you won't have any legal protection against other people using your idea. A large company could start producing a similar or identical product at a cheaper price, closing you out of the market.
Marketing your product as patent pending when you have not submitted an application is against the law, as is marking a product as patented when the application is not approved. The USPTO can impose a fine of up to $500 per offense if you mislead the public with false claims. Even a competitor who looks into your claims of patent pending status could take legal action against you if you do not have an application on file with the USPTO.
Frequently Asked Questions
- Does a patent pending status hold any legal weight?
Not really, although it can help deter other companies or individuals from creating and manufacturing the same product. You cannot sue someone for infringement until the patent has been issued by the USPTO.
If you do receive the patent, and a company or person continues to produce the product, you can take legal action as soon as you inform the infringer of your patent approval. You can inform the company or person by sending a letter with the patent approval information or by simply adding the patent number to your product and/or materials, replacing the patent pending status.
- When can I start using patent pending status on my product or marketing materials?
You can refer to a product or design as patent pending as soon as you submit your design, utility, or plant patent application to the USPTO.
Steps to File
Filing for patent protection is not an easy process. You must fill out the USPTO application without any mistakes and include drawings or images of the product in a variety of different views and angles, drawn to the exact specifications set forth by the USPTO. Applications can be submitted through the USPTO website or by mail.
If you need help with filing a patent or understanding the rules of patent pending status, you can post your legal need 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, Menlo Ventures, and Airbnb.