In legal terms, the phrase “patent pending” means that the inventor of an invention or creation has begun the process of applying for the exclusive rights to use, sell or license the product. In other words, it means that the inventor of the product has submitted a provisional patent application to the United States Patent and Trademark Office (USPTO). Another way to understand patent pending is the idea that using the statements means you have an actual filing date for your patent application. The phrase is often found marked on the product.
It should be noted that the term “patent pending” does not have any actual legal significance. Instead, it simply informs competitors and the rest of the general public that a patent application has been filed.
Remember: in the United States, the patent system operates on a first-to-file basis. Simply put, priority over patent rights goes to the first person to file for the patent. If more than one person applies for a patent for the same product, the applicant who filed first will be granted patent ownership rights. As a result, the patent owner may be able to collect damages and claim royalties following patent infringement.
Essentially, patent pending is used to warn competitors that the inventor of the product has already filed a patent. Protection for the product will be backdated to the day that the provisional patent application was filed. Moreover, while an inventor may not be able to prevent infringement while a product is in its patent-pending stage, he or she can take full legal action once the patent is approved.
While patent pending may not hold any significant legal weight, the USPTO still requires that the term be used in good faith. Failure to comply with this law can lead to false marketing fines of up to $500.
Inventors often feature the phrase “patent pending” on the product itself. If the product is prone to wear, patent pending may be printed onto marketing materials such as advertisements as well as product packaging. Variations or abbreviations may be used as well, such as “Pat. Pend.” Although this is not a requirement, inventors may also list the provisional patent application number alongside the “patent pending” phrase.
It's possible you've seen "patent pending" on various products throughout your everyday life without really knowing what it means. Nonetheless, if you’ve decided to start applying for a patent, it is crucial to become familiar with all of the key terms related to the process. Reach out to one of our expert intellectual property attorneys today for assistance with patents.